1. IDEA, PART B RECENT PROGRAMMATIC FINDINGS AND WAYS TO AVOID THEM CASE STUDIES Bonnie Little Graham, Esq. bgraham@bruman.com Jenny Segal, Esq. jsegal@bruman.com Brustein & Manasevit, PLLC Fall Forum 2012

2. CASE STUDIES Brustein & Manasevit, PLLC

3. RESOURCES Individuals with Disabilities Education Act (IDEA) Visit: http://idea.ed.gov/http://idea.ed.gov/ Code of Federal Regulations 34 C.F.R. 300 (IDEA Part B) Visit: http://ecfr.gpoaccess.govhttp://ecfr.gpoaccess.gov Brustein & Manasevit, PLLC

4. SYLLABUS Child Find Compton Unified Sch. Dist. v. Addison, 598 F.3d 1181 (9th Cir. 2010), cert. denied, 132 S. Ct. 996 (2012). IEP Review, Revision and Implementation Sumter County Sch. v. Heffernan, 642 F.3d 478 (4th Cir. 2011). Anchorage Sch. Dist. v. M. P., No. 10-36065 (9th Cir. July 19, 2012). Parentally Placed Private School Children E.S. v. Katonah-Lewisboro Sch. Dist., No. 10-4446 (2d. Cir. July 6, 2012). Moorestown Twp. Bd. of Educ. v. S.D., 811 F. Supp. 2d (D.N.J. 2011). Brustein & Manasevit, PLLC

5. FAILURE TO IDENTIFY ( CHILD FIND ) Brustein & Manasevit, PLLC

6. C OMPREHENSIVE C HILD F IND S YSTEM All children ages 3-21 with disabilities residing in the State, regardless of the severity of their disability, who are in need of special education and related services are identified, located and evaluated. 34 CFR § 300.111. Including: Homeless Children Wards of the State Private School Students Brustein & Manasevit, PLLC

7. C OMPREHENSIVE C HILD F IND S YSTEM ( CONT.) SEA Develop a comprehensive statewide plan Coordinate services to ensure a Free Appropriate Education (FAPE) Monitor effectiveness of child find system Report the number of children eligible for special education and related services LEA Promote public awareness of child find Organize parent/ community outreach Create an effective screening method Create a pre-referral system for at-risk kids, including optional early intervening services Brustein & Manasevit, PLLC

8. Case Study Compton Unified Sch. Dist. v. Addison, 598 F.3d 1181 (9th Cir. 2010), cert. denied, 132 S. Ct. 996 (2012). Brustein & Manasevit, PLLC

9. F ACTS 9 th grade, student scored below the 1 st percentile on standardized tests. School attributed it to being a “transitional year.” 10 th grade, student failed every academic subject, refused to enter the classroom, colored with crayons at her desk, and played with dolls. School saw grades and behavior as a “red flag.” Referred student to a mental health counselor who recommended the student be assessed. Student’s mother was reluctant to have the student “looked at,” and the school did not want to “push it.” Brustein & Manasevit, PLLC

10. F ACTS (C ONT.) School did not assess the student, but instead advanced her to 11 th grade. In September of 11 th grade, parent made a written request to the school for an educational assessment and Individualized Education Program (IEP) meeting. Student found eligible for special education services. Parent filed for due process seeking compensatory education services for school’s failure to identify the student and provide a free appropriate public education (FAPE). Brustein & Manasevit, PLLC

11. I SSUE P RESENTED Does a parent have a right of action if the school fails to identify a child with a disability in need of special education? Brustein & Manasevit, PLLC

12. SCHOOL DISTRICT’S ARGUMENT IDEA’s written notice procedures limit the scope of the due process complaint procedure. IDEA written notice requirement: A local education agency (LEA) must provide written notice to a child’s parents whenever it “ proposes to initiate or change ” or “ refuses to initiate or change the identification, evaluation, or educational placement of the child…” 34 CFR § 300.503(a). The district asserted that because it took no action, it had not refused to act and that the parent did not have a right of action. Brustein & Manasevit, PLLC

13. T HE D ECISION Brustein & Manasevit, PLLC

14. The Administrative Law Judge (ALJ), District Court, and 9 th Cir. all found in favor of the parent. The jurisdictional requirements for an IDEA complaint are clearly set out apart from the notice provisions. A party may file a complaint on any matter “relating to the identification, evaluation, or educational placement of a child with a disability, or the provision of FAPE to the child.” §300.507(a). Brustein & Manasevit, PLLC

15. FAILURE TO REVIEW, REVISE, OR IMPLEMENT THE IEP Brustein & Manasevit, PLLC

16. IEP T EAM M EMBERS Required Members Parent At least 1 regular ed teacher, if child participating in gen ed At least 1 special ed teacher/provider LEA representative LEA can designate member Individual who can interpret evaluation results May Be Required Individuals with special knowledge or expertise of child Related services personnel Child, when appropriate Transition service agency representatives Brustein & Manasevit, PLLC

17. W HO C AN M ISS AN IEP MEETING ? ALL members (required/not required) For all or part of meeting LEA and parent must agree in writing to excuse any required member from an IEP meeting. §300.321(e). Meeting without parent Permitted but need documentation of attempts to arrange mutually agreed on time and place.§300.322(d). Brustein & Manasevit, PLLC

18. R EVIEW AND R EVISION OF IEP S IEP Team must review IEP annually Encouraged to consolidate with reevaluation meeting and other IEP Team meetings. §300.324(a)(5). Reevaluation must occur at least once every 3 years. §300.324(b)(1). Revising IEP: After annual IEP meeting for School Year, parent and LEA can agree not to convene meeting for changes Can develop written document to amend/modify current IEP But, at parent’s request, must provide redrafted version with amendments incorporated. §300.324(d)(2). Brustein & Manasevit, PLLC

19. O THER IEP R EQUIREMENTS LEA must Ensure that each teacher and service provider responsible for implementation of the IEP has access to the IEP; and Ensure that each teacher or provider is informed of: specific responsibilities in implementing IEP; specific accommodations, modifications and supports required within the IEP; and any changes to child’s IEP. §300.323(d). Brustein & Manasevit, PLLC

20. P ROVISION OF S PECIAL E DUCATION AND R ELATED S ERVICES Special Education Teachers Highly Qualified standard If a teacher uncertified in special education is providing student with hours required by IEP, those hours do not count. §300.156(c). Related Services Providers Highly Qualified standard not required BUT -- need State approved certification, licensing or registration for the services provided. §300.156(b). Brustein & Manasevit, PLLC

21. W HAT ARE R ELATED S ERVICES ? Transportation, developmental, corrective and other supportive services required to help a disabled child benefit from special education.§ 300.34. Includes: interpreting services, physical and occupational therapy, speech-language pathology and audiology, counseling, therapeutic recreation. Excludes: surgically implanted medical device or replacement. Brustein & Manasevit, PLLC

22. C ASE S TUDY Sumter County Sch. v. Heffernan, 642 F.3d 478 (4th Cir. 2011). Brustein & Manasevit, PLLC

23. I SSUE P RESENTED Is it a denial of FAPE if a school has not fully implemented a student’s IEP, but the student has made progress? Brustein & Manasevit, PLLC

24. F ACTS The student has autism. 2005-2006 IEP called for 15 hours per week of applied behavioral analysis (ABA) therapy. At the beginning of the school year, the school only provided 7.5-10 hours of ABA therapy. Student began exhibiting problematic “self- stimulating behavior.” Parents removed the student for 1 month for medical treatment. When he returned to school, the school hired a board- certified ABA therapist, and the student’s behaviors improved. Brustein & Manasevit, PLLC

25. F ACTS (C ONT.) The student’s 2006-2007 IEP called for 27.5 hours per week of ABA therapy. In August 2006, the ABA therapist left the position, and the school hired a certified special education teacher who was not trained in ABA therapy. Student’s problematic behaviors returned. School hired a consultant to provide ABA training to the teacher, but found the teacher to be resistant to the teaching approach. Brustein & Manasevit, PLLC

26. F ACTS (C ONT.): In September 2006, the parents removed the student from the school and began homeschooling. They hired the student’s former ABA therapist to conduct an assessment. The therapist found that the student had regressed since she had last worked with him. The parents initiated due process proceedings alleging that the school failed to provide FAPE. Brustein & Manasevit, PLLC

27. SCHOOL DISTRICT’S ARGUMENT: District acknowledged that it did not provide the student with all IEP-required hours of ABA therapy. District argued that it delivered significant portions of the services required by the IEP and that the student received some educational benefit. Brustein & Manasevit, PLLC

28. T HE D ECISION Brustein & Manasevit, PLLC

29. The 4 th Cir. agreed that the failure to perfectly execute an IEP does not necessarily amount to the denial of FAPE However the failure to implement a material portion of the IEP does deny FAPE. Evidence that student made some gains in certain skill areas tested in spring 2006, however they were not significant enough for the court to determine that the student received some non-trivial education benefit. Brustein & Manasevit, PLLC

30. C ASE S TUDY Anchorage Sch. Dist. v. M. P., No. 10-36065 (9th Cir. July 19, 2012). Brustein & Manasevit, PLLC

31. I SSUE P RESENTED Must an LEA have the parents’ cooperation or consent in order to revise the IEP? Brustein & Manasevit, PLLC

32. F ACTS Student has autism. Parents & school district had many disagreements over IEP content and parents filed numerous due process complaints. No agreement on 3 rd grade IEP when 2 nd grade IEP expired. School district scheduled annual review meeting 6 months late. Parents did not attend, but submitted suggestions in writing and evoked “stay put.” School district halted all effort to revise the IEP. Parents unilaterally placed student in private school for the 4 th grade and filed a new due process complaint alleging that the student had been denied FAPE due to the out-of-date IEP. Brustein & Manasevit, PLLC

33. SCHOOL DISTRICT’S ARGUMENT The school acknowledged that the IEP was out of date. But argued that the failure to develop an updated IEP was due to the parents unwillingness to cooperate. Brustein & Manasevit, PLLC

34. T HE D ECISION Brustein & Manasevit, PLLC

35. The 9 th Circuit found: School district had affirmative duty to review & revise a child’s IEP on at least an annual basis regardless of the parents’ cooperation. Noting that “nothing in the statute makes the duty contingent on parental cooperation with, or acquiescence in, the state or [LEA’s] preferred course of action.” When the LEA received the parents’ responses and revisions to the draft IEP, it could: Continue to work with the parents to develop an IEP; or Unilaterally revise the IEP and request a due process hearing to have it determined appropriate. The court recognized that parents evoked “stay put,” but reasoned that this “did not excuse [the school district] from its responsibility to have a statutorily compliant IEP in place at the beginning of the each school year.” Brustein & Manasevit, PLLC

36. O THER R ELEVANT C ASES L.G. & E.G. ex rel. E.G. v. Fair Lawn Bd. of Educ. L.G. & E.G. ex rel. E.G. v. Fair Lawn Bd. of Educ., No. 11–3014 (3d Cir. June 28, 2012). Found that district did not violate LRE when student’s IEP did not provide interaction with nondisabled peers Klein Indep. Sch. Dist. v. Hovem Klein Indep. Sch. Dist. v. Hovem, No. 10-20694 (5th Cir. Aug. 6, 2012). Found that the district provided FAPE when student did not pass writing test, but succeeded in mainstream classes Brustein & Manasevit, PLLC

37. FAILURE TO PROVIDE SERVICES TO PARENTALLY PLACED PRIVATE SCHOOL CHILDREN Brustein & Manasevit, PLLC

38. P RIVATE S CHOOLS : E QUITABLE P ARTICIPATION S ERVICES Parentally-placed private school children receive equitable participation services, not FAPE! “Parentally-placed”? Voluntarily enrolled by their parents in private schools Not referred to private schools by LEA to receive FAPE! Not placed by parents seeking FAPE tuition reimbursement! No individual right to equitable participation services Cannot file due process complaint based on an individual right to services, BUT can file due process complaint on private school child find rights. §300.140. Brustein & Manasevit, PLLC

39. P RIVATE S CHOOLS : U NILATERAL W ITHDRAWAL Student attends public school and is withdrawn from the public placement without consent or referral of the public agency. LEA is not required to pay for tuition cost if it made FAPE available to student in timely manner. However, the student may still receive equitable services while attending the private school. §300.156(a). If LEA did not make FAPE available to student before the unilateral placement, a hearing officer can require the LEA to reimburse the parents for some or all of the child’s private school tuition. §300.148(c). Brustein & Manasevit, PLLC

40. C ASE S TUDY Moorestown Twp. Bd. of Educ. v. S.D., 811 F. Supp. 2d (D.N.J. 2011). Brustein & Manasevit, PLLC

41. I SSUE P RESENTED May a school district deny a request for evaluations and IEP by a privately enrolled student whom the district knows is disabled and domiciled in the district on the grounds that the child has not re-enrolled in the public school? Brustein & Manasevit, PLLC

42. F ACTS Student has autism, received special education services from LEA from 1999-2006. During May 2006 IEP meeting, parents expressed concern over proposed levels of support and overall progress. School agreed to re-evaluate student, but the parents opted to unilaterally place the student in a private school located within the district. The parents requested reimbursement, but school refused. Brustein & Manasevit, PLLC

43. F ACTS Student attended private school for the SY 2006-07. During SY 2007-08, parents requested updated evaluations and an IEP meeting with LEA to determine whether to return to the district. Parents wrote to LEA 3 times to schedule the evaluations and IEP meeting. LEA replied to the 3 rd letter refusing parents’ request. LEA referred them to another district with which it contracted to schedule an initial evaluation for the student. Parents filed for due process seeking reimbursement for the SY 2006-07 for LEA’s failure to provide FAPE and for the 2007-08 and 2008-09 school years for failing to provide an IEP. Brustein & Manasevit, PLLC

44. SCHOOL DISTRICT’S ARGUMENT IDEA permits a parent and the LEA to agree to longer than 60 days to conduct initial evaluations if the child: 1. enrolls in another school after the 60-day time frame has begun; and 2. prior to a determination that the child is qualified as disabled. It provided “equitable participation” to the student in compliance with IDEA. Brustein & Manasevit, PLLC

45. T HE D ECISION Brustein & Manasevit, PLLC

46. U.S. District Court of NJ found: LEA does not need to continue to develop IEPs for child who has unilaterally withdrawn from the public school BUT If parents request evaluations because they would like to re-enroll him in the district, the district must develop an IEP. Court noted that parents were not seeking initial evaluation or additional services at the private school, but an IEP so that the student could potentially transfer back to the district. The LEA’s response “is particularly troubling because the district already knew [the student] was eligible for special education services.” Brustein & Manasevit, PLLC

47. C ASE S TUDY E.S. v. Katonah-Lewisboro Sch. Dist., No. 10-4446 (2d. Cir. July 6, 2012). Brustein & Manasevit, PLLC

48. I SSUE P RESENTED During the IEP process, must a school district consider the progress a student made while attending a private school? Brustein & Manasevit, PLLC

49. F ACTS : Student received special education services from LEA from 2002-2006. Parents decided to unilaterally place student in private school for SY 2006-07. Parents sought reimbursement for private school tuition, alleging that student had not made progress during the previous 2 years at public school and LEA had not offered FAPE for SY 2006-07. At end of SY 2006-07, the parents requested IEP meeting with LEA to design IEP for following year. Parents argued IEP offered for SY 2007-08 did not take into account student’s progress made while at private school and that it was therefore an inadequate IEP. Brustein & Manasevit, PLLC

50. SCHOOL DISTRICT’S ARGUMENT Student made progress while attending public school. The 2006-07 IEP would have provided FAPE. Student showed little or no progress at the private school during SY 2006-07. The 2007-08 IEP was adequate. Brustein & Manasevit, PLLC

51. T HE D ECISION Brustein & Manasevit, PLLC

52. 2 nd Cir. affirmed District Court’s finding that LEA provided FAPE for SYs 2004-06 and 2006- 07 IEP was adequate. However, court concluded that because LEA did not take into account the progress the student made while attending the private school, the proposed 2007-08 IEP would have likely caused the student to “ regress or make only trivial advancement.” Thus, the LEA failed to offer an adequate IEP and FAPE for that year. Brustein & Manasevit, PLLC

53. QUESTIONS Brustein & Manasevit, PLLC

54. Disclaimer This presentation is intended solely to provide general information and does not constitute legal advice. Attendance at the presentation or later review of these printed materials does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances. Brustein & Manasevit, PLLC