PL 94-142, EHA, IDEA Erick Menyuk, Attorney

Why we care “The True Measure of Any Society can be found in how it treats its most vulnerable members” ~ Ghandi “...the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life; the sick, the needy and the handicapped. " ~ Last Speech of Hubert H. Humphrey

Background Prior to 1997, the original title was the Education for the Handicapped Act of 1975 (“EHA”), changed in 1988 to Individuals with Disabilities Education Act (IDEA). BOTH Federal Law (IDEA) California special education law entitle students to a Free and Appropriate Public Education (“FAPE”). 20 U.S.C. 1400 et seq.; Cal Educ. Code §§ 56026 et seq.

KEY CHANGES in IDEA, 1997 Reauthorization of IDEA in 1997 changed FAPE in order to strengthen implementation to address “low expectations and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.” 20 U.S.C. § 1400(c)(4). 1997 IDEA strengthened policy for ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.” 20 U.S.C. § 1400(c)(l). Significant change from EHA, going beyond “access,” but rather focusing on “an outcome oriented process which promotes movement from school to post school activities, including formal education, if appropriate, employment and independent living.” 64 Fed. Reg. 12474. FAPE changed from Rowley's emphasis on a substantive test to focusing more on maximizing the quality of education and progress for the student.

IDEA Reauthorization in 2004 FAPE was further strengthened in the IDEA in 2004. 30 years of research and experience demonstrated effectiveness of high expectations and education in general education classrooms. Congress reported that education in general education classrooms (AKA Inclusion) supports students to “meet developmental goals and, to the maximum extent possible, the challenging expectations that have been established for all children and be prepared to lead productive and independent adult lives, to the maximum extent possible.” 20 U.S.C. § 1400(c)(5)(A). The phrase “to the maximum extent possible” in the IDEA describes the requirements to improve the academic achievement and functional performance of children with disabilities.

Individualized EDUCATION PROGRAM The IDEA, 20 U.S.C. §§ 1400 et seq., requires a school district (Local Education Agency) to provide a student with an educational program in the manner required by applicable state and federal law. Among other things, this program must be tailored to meet his “unique and individual needs,” and it must be one from which he can derive meaningful educational benefit. It cannot be a program with low expectations and, instead, must ensure that a student be provided with the instruction and support necessary to ensure, to the maximum extent possible, the remediation of the challenges resulting from his disability. 20 U.S.C. § 1400(c)(4) and (5), 20 U.S.C. §1414(d)(1)(A). And see, School Committee of Burlington v. Department of Education, 471 U.S. 359 (1985); Seattle School District No. 1 v. B.S., 82 F.3d 1493 (9th Cir. 1995).

Individualized EDUCATION PROGRAM “[T]he term ‘unique educational needs’ [shall] be broadly construed to include the handicapped child’s academic, social, health, emotional, communicative, physical and vocational needs.” Seattle School District No. 1 v. B.S., 82 F.3d 1493, 1500 (1996). Similarly, “[E]ducational benefit is not limited to academic needs, but includes the social and emotional needs that affect academic progress, school behavior, and socialization. (Emphasis added) County of San Diego v. California Special Education Hearing Office, 93 F.3d 1458, 1467-68 (9th Cir. 1996).

IEP Requirements The IDEA has specific requirements concerning the procedure by which an Individualized Education Program (IEP) is formulated, and the contents of the IEP document in which it is memorialized. Each IEP must include a specific and accurate statement of a student’s present levels of academic and functional performance, a statement of specific, appropriate, and measurable annual goals for the student, a specific statement of the special education and related services and supplementary aids and services to be provided to the child, and a statement of the anticipated frequency, location and duration of those services and modifications. 20 U.S.C. §§ 1414(d)(1)(A)(I),(II),(IV) and (VII). Each of these requirements is central to an appropriate IEP for a student and a failure to meet any of these requirements results in a denial of an appropriate educational program for the student.

When does DUE Process Occur? Legal: When a student has not been provided with a timely and appropriate placement and services and/or there is a failure to offer an appropriate placement and services in an IEP document that complies with the requirements of federal and state law, the student may access an administrative hearing review process and obtain viable and appropriate relief for such failures on the part of the District by filing a “due process complaint notice.” 20 U.S.C. § 1415(b)(7).

When does DUE Process Occur? Human (or how to avoid meeting me outside of CSHA): Listen – you do not have to agree; but you have to try to actively listen to what parents are saying Understand – you may be the expert with regard to a child’s speech needs, but the parent is the expert in the whole child; understand why they want what they want Explain – If you disagree, that okay. But have a reason and let parents know why you disagree – you do not have to train them to be SLP’s, but you should be able to justify your position in a way they understand

IDEA and the Role of the SLP Ann Shough, M.A., CCC-SLP IDEA and the Role of the SLP

The Many Provisions of IDEA IDEA contains many provisions designed to protect the rights of children with disabilities and their families. Under these provisions, are protections of these legal rights. These protections are often referred to as Procedural Safeguards. Procedural safeguards define what a school district can and/or cannot do in determining the need for Special Education and Related Services.

Procedural Safeguards These safeguards allow parents to review their child’s full educational records, participate fully in identification and IEP team meetings, and become involved in placement decisions. These safeguards also include Due Process, if there is a challenge to any of these rights.

Due Process What is Due Process? What are the levels of Due Process? General definition: the regular administration of the law according to which no citizen may be denied his legal rights. Specific definition in IDEA: a means by which a parent or guardian of a SPED student may seek redress of grievances against a school or school district. What are the levels of Due Process? Federal, State(guidelines may vary), Local(guidelines may vary according to school district) The Los Angeles Unified School District(LAUSD)

Due Process Why do parents file for Due Process? They believe their child has been denied a Free and Appropriate Public Education(FAPE). They believe their child has not been offered the appropriate placement and/or related services in the Least Restrictive Environment(LRE). They believe their child’s IEP has not been implemented properly. Who resolves issues of Due Process? District personnel and parents, with or without representation Advocates Attorneys

Related Services defined by IDEA(that’s us) Speech Language Pathology and Audiology et al…. Occupational Therapy Physical Therapy Assistive Technology Vision Therapy Orientation and mobility services Psychological services

The Role of the SLP in Matters of Due Process Overview Roles and Responsibilities of SLPs Assess Serve Students Identification of Student Need Assessment Placement Services

Other Factors Consideration of Non-School Based Assessments and Services Independent Educational Evaluations (IEEs) Are conducted by someone not employed by a school district. Are requested usually as a result of a disagreement with a school district assessment and/or recommendations. Are to be considered and interwoven into existing school district information.

Other Factors Continued……….. Non Public Agency(NPA) services Are services that are off site from the educational setting. Are services that offer little or no opportunity for observation or teacher consultation. Are services that are frequently offered when school district services have not been available to the student.

LAUSD: LAS LAUSD: LAS(Language and Speech), the Speech and Language Program, prepares SLPs to handle matters of Due Process. The Speech and Language Program gives professional development presentations to staff members defining IDEA, procedural safeguards, and matters of Due Process. The Speech and Language Program sends Due Process Alerts to SLPs following the completion of a matter of Due Process(i.e. IDR, Mediation Agreement, Hearing, State Complaint).

LAUSD:LAS The Due Process Alert gives a ‘heads up’ to the SLP who may be working with with a student who has had a recent matter of Due Process. The Due Process Alert gives the identifying information for the student and summarizes the actions for the SLP regarding a possible assessment, a modification in service provision, or other related matters.

A Few Queries What happened? Why did parents file for Due Process? Because of the parents’ beliefs mentioned earlier(denial of FAPE, challenge to the appropriate placement and/or related services, IEP not implemented properly, etc). And also, because parents may be in the early stages of acceptance of a child with a disability. What can you do?

Best Practices for SLPs in Due Process Continue to act ethically and in the best interest of students. Continue to focus on student need to support access to the curriculum. Continue to develop strong relationships with parents and teachers. Ensure that all assessment reports are current for all IEPs requiring them, such as triennials, and other designated times. Ensure that assessment reports are complete for critical elements, observation, assessment data, summary, etc.

Best Practices for SLPs in Due Process Ensure that Present Levels of Performance give a summary of student progress(yes or no) and relevant statements for strengths, needs, and impact. Ensure that student goals are based on assessment results/student need and are measurable and achievable. Ensure that services are being provided according to the most recent, active IEP with the specified time, frequency, and if necessary, type of service delivery. Ensure that student documentation accurately reflects student progress toward goal achievement. Ensure that there is regular and consistent communication with all stakeholders.

Conclusion

IDEA: Best Practice Karl Widell, Attorney

Education for All Handicapped Children Act of 1975 … response to Congress' perception that a majority of handicapped children in the United States "were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to `drop out.'" H. R. Rep. No. 94-332, p. 2 (1975) (H. R. Rep.). BOARD OF EDUCATION OF THE HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, v. ROWLEY, 458 U.S. 176, 179 (1982)

Individuals with Disabilities Education Act of 1990 Replaced EHA Focused on the Individual Although scheduled to be reauthorized in 2011, reauthorization could be delayed until 2015 or later. Before addressing IDEA, Congress is expected to reauthorize the Elementary and Secondary Education Act (ESEA) which we hope will be completed in 2015. However, if there are delays, IDEA could be delayed even later.

Special Education is not a place. One of Congress’s stated goals for IDEA in 2004 was “to ensure … that special education can become a service for [children with disabilities] rather than a place where such children are sent.” 20 U.S.C. §1400(c)(5)(C) 29

Individualization http://www.merriam-webster.com/dictionary/individualize

Individualized Education Program (“IEP”) Team 20 U.S.C. § 1414(d)(1)(c)(i), (ii), and (iii); Ed. Code, § 56341 (f) and (g) Parents and school district may agree to the absence or excusal of a required member of the IEP team so long as it is in writing and in advance of the IEP meeting. Absence – when the member’s area of curriculum or service is not being discussed or modified. Excusal – when the member’s area of curriculum or service area is being discussed or modified and if the member provides written input regarding development of the IEP prior to the IEP meeting.

IEP Team Absence/Excusal should be the exception, not the rule. Everyone on the team must take ownership of the entire IEP. As a team member, you are there to serve the student’s interests. Don’t compartmentalize. Don’t ignore data. Collaborate.

Develop Defensible Goals and Objectives

Develop Defensible Goals and Objectives 20 U.S.C. § 1414(d)(1)(A)(i)(I); Ed. Code, § 56345(a)(2) The IEP must include: Annual measurable goals (for all children) Benchmarks or short term objectives (only for students who take alternative assessments)

Develop Defensible Goals and Objectives Annual Measurable Goals Should correlate directly to Student’s present levels of achievement and performance. Should, and need only, be written in areas of identified need based on assessment data. “To improve social skills” is not a measurable annual goal.

Develop Defensible Goals and Objectives Goals are only to be written in areas of identified need based on assessment data. All annual goals and short term objectives should have consistency in format, measurement and accuracy criteria. Consider possible consequences when agreeing to add additional goals to a child’s IEP that are requested by a parent. Think CRITICALLY; Understand the request; and Help the parent understand.

Develop Defensible Goals and Objectives Short-Term Objectives Should describe a sub-skill of an annual goal (not restate the annual goal). Should be measurable and quantifiable (include mastery criteria). Should be written in a sequential order that reflects a progression toward the annual goal. Should identify method by which progress will be evaluated.

Develop Defensible Goals and Objectives Best Practice! DO work with other providers to coordinate proposed goals ahead of time, but ALWAYS remain open to discussion during the team meeting. DON’T draft goals or objectives the team does not think student can reasonably attain in given time frame. When adding or deleting goals in an area, DO consider whether an increase or decrease in services or a change in placement is warranted.

Develop Defensible Goals and Objectives Best Practice! DO anticipate changes between grade levels and curriculum/content standards. DO try to set all goals and objectives on the same cycle (or align reporting periods).

“Consider” Parents’ Private Reports

“Consider” Parents’ Private Reports Parents have a right to an independent educational evaluation (“IEE”) at public expense if they disagree with an evaluation conducted by the school district. If an IEE is requested, the school district must grant it, or file due process to defend its own evaluation, within a reasonable time. If an IEE is granted, parents may choose the outside evaluator, provided they meet school district criteria, including cost containment criteria.

“Consider” Parents’ Private Reports 34 C.F.R. § 300.502(c) Ed. Code, § 56329(c) If parent obtains an evaluation at private expense or an IEE at public expense, the results must be “considered” by the District in any decision made with respect to FAPE for student.

“Consider” Parents’ Private Reports What does “consider” mean and to what extent does the team have to “consider” a parent’s private report?

“Consider” Parents’ Private Reports Capistrano Unified School District SN 03-02569 (SEHO 2004) Private assessment should “be reflected upon” and thought about with “a degree of care or caution.” Not every member of IEP team must review the private assessment in order for it to be “considered.” Review by Special Education Director (or someone with equivalent knowledge and expertise) may be sufficient.

“Consider” Parents’ Private Reports A.B. v. San Francisco Unified School Dist. 51 IDELR 158 (N.D. Cal. 2008) “[T]he fact that the District may not have adopted the recommendations from a private outside report do not necessarily indicate -- without more -- the District's failure to consider necessary assessments.” DO document in the IEP comments that parent’s private report, including recommendations, was reviewed by or reported to the team, and what, if any, recommendations were adopted.

“Consider” Parents’ Private Reports Best Practice! When in doubt, offer to assess a student rather than wait for parents to obtain a private assessment, if parents or staff have concerns about student’s needs or performance. Request copies of any private reports parents are relying on when discussing a child’s IEP. Offer an IEE or a first-time assessment if the private report raises any area of concern that requires more data or information.

“Consider” Parents’ Private Reports Best Practice! Refer to any private report in the IEP if the team either relied on it for present levels of performance or as a basis for changing placement or services. If a parent requests that recommendations from a private report be implemented, call an IEP meeting to discuss or, alternatively, provide prior written notice of the District’s decision.

Rights and Consideration of Parents’ Role Fernando Antonio Gomez Parent/Advocate CSHA Conference IDEA 40 Years Later March 06, 2015

Oscar Antonio Gomez

Informant, advocate, adversary and liaison.

Parents’ Rights in the IEP Process Allow parents the ability to participate meaningfully in the process. Ensure that parents’ concerns are heard and considered. Make the IEP process as comfortable as possible for the parents.

Assessment Students must be evaluated for special education upon the request of their parents. Timelines for assessment and convening an IEP meeting help parents to know that their concerns are being taken seriously.

Written Meeting Notice Parents must receive written notice of the time, date, location, and purpose of a meeting. This helps parents know what to expect and to prepare in advance for the meeting.

Attend the Meeting and Bring Someone With Parents can bring other people to the meeting, including advocates or attorneys. It may be difficult for parents to discuss their child’s strengths and weaknesses sometimes. Bringing someone else for support may make this easier.

Present Concerns Parents must be allowed to discuss their concerns about their child. Parents know their child best and may mention something important that school staff need to consider when developing the child’s educational plan.

Have Interpreters if Needed If parents need a sign or language interpreter in order to participate in the meeting, one must be provided for them. This is essential in order for some parents to truly participate in the meeting. Everyone must understand what is being said in order to avoid confusion.

Obtain a Copy of the IEP Parents must be given a copy of the IEP document for their records. They can request it in a language other than English as well. The IEP is a contract for services for a student. It is good to have a record of the meeting to be able to remember later what was agreed to.

Have the IEP Reviewed Annually The IEP is a snapshot of a student at a specific point in time. It must be updated annually to reflect current progress, new goals, and new service agreements. Students may change a lot during a single year. It is important to make sure that the IEP document stays current to reflect that.

Have the IEP Implemented Quickly The IEP that is agreed to must be implemented as soon as possible. Services agreed to in the IEP are needed to help a student succeed, and so should be put in place as quickly as possible in order to help a student as much as possible.

Additional Safeguards There are legal protections from the IEP being changed without parental consent. There are also complaint and appeal processes for parents if disagreements arise. Having access to complaint and appeal processes helps to balance power between parents and the school. It also allows for concerns to be addressed by a neutral party.