1. Presented by: . Marcy Gutierrez, Esq.
Legal Overview &The Basics for Part B of the IDEA : Substantive and Procedural FAPE California State University, Sacramento October 2016
Presented by: .
Marcy Gutierrez, Esq.
Cover Page – we are still waiting on approval 1

2. Marcy Gutierrez Senior Counsel, Sacramento Office
Marcy Gutierrez is Senior Counsel in Lozano Smith's Sacramento office. She began her career in education as a public school teacher, and has been advising and representing school districts and other education entities for over ten years. Her areas of expertise include special education, student issues, and litigation. Ms. Gutierrez has effectively represented school districts in many venues, including cases successfully litigated at the administrative agency level as well as in the federal courts. In addition to special education, she also advises and represents school districts and other education entities with regard to student discipline, public records requests, and the broad spectrum of anti-discrimination and anti-harassment requirements that apply to public education agencies.
Bio slide 2 2

3. IDEA Eligibility & Child Find
Outline for Today
IDEA Overview
IDEA Eligibility & Child Find
Procedural FAPE
Ready to climb the hill of IDEA and FAPE?
Transition Plan 3

4. IDEA Overview

5. First and Foremost: The Nomenclature
IDEA – Individuals with Disabilities Education (and Improvement) Act
IEP – Individualized Education Program
FAPE – Free Appropriate Public Education
LRE – Least Restrictive Environment
Can you think of more?
Additional Acronyms to address (if time permits):
IEE Independent Educational Evaluation
IPP Individual Program Plan (Regional Center)
LEA Local Education Agency
NCLB No Child Left Behind
OAH Office of Administrative Hearings
OCR U.S. Office for Civil Rights
OSEP U.S. Office of Special Education Programs / DOE
OSERS U.S. Office of Special Education and Rehabilitation Programs
ADA Americans with Disabilities Act
ADR Alternative Dispute Resolution
ALJ Administrative Law Judge
AT Assistive Technology
CAHSEE California High School Exit Exam
DIS Designated Instruction and Services
DOE U.S. Department of Education
DOR Department of Rehabilitation
FERPA Family Educational Rights and Privacy Act
OT/PT Occupational Therapy/Physical Therapy
PWN Prior Written Notice
RSP Resource Specialist Program
SDC Special Day Class
SELPA Special Education Local Plan Area
SLP Speech Language Pathologist
SPED Special Education

6. What is the IDEA? Federal law enacted by Congress
Regulations developed by U.S. Dep’t of Ed. in and updated
Purpose of IDEA / FAPE
Changes over time
This year marks the 40th anniversary of the IDEA. After its passage in 1975, from time-to-time Congress has amended the statue and the U.S. Department of Education published and amended the implementing regulations.
When the statue was last amended in 2004, it specified the following:
Congress finds the following: (1) Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.
The final regulations for Part B of IDEA, published in August 2006, begin with a statement of the IDEA’s purposes, which are:
(a) To ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living;
(b) To ensure that the rights of children with disabilities and their parents are protected;
(c) To assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities; and
(d) To assess and ensure the effectiveness of efforts to educate children with disabilities. (§300.1)
The purpose of the Individuals with Disabilities Education Act (IDEA) (20U.S.C. § 1400 et. seq.) is to “ensure that all children with disabilities have available to them a free appropriate public education (FAPE),” and to protect the rights of those children and their parents. (20 U.S.C. § 1400(d)(1)(A), (B), and (C); see also Ed. Code, § )
Sec Purposes.
The purposes of this part are--
(d) To assess and ensure the effectiveness of efforts to educate children with disabilities.
(Authority: 20 U.S.C. 1400(d) )
A FAPE means special education and related services that are available to the student at no cost, that meet the state educational standards, and that conform to the student’s individualized education program (IEP). (20 U.S.C. § 1401(9); Cal. Code Regs., tit. 5, §
3001, subd. (o).) 6 6

7. Laws that Govern Special Education
Hierarchy of Laws:
IDEA
Federal Regulations
Federal Court Cases
State Codes
State Regulations
Local Policy
Guidance (OAH, OCR, OSEP)
Administrative Decisions
IDEA
US Department of Education is tasked with developing the federal regulations, which can be found at 34 CFR part 300 et seq.
Important Federal Case:
Board of Ed. of Hendrick Hudson Central School Dist. v. Rowley 458 U.S. 176 (1982). First decision in a special education case by the U. S. Supreme Court; defined "free appropriate public education. (Discussed more next slide)
Cal. Ed Code on special education begins in/around Ed. Code Section et seq.
State Regs (CDE)
Policy:
SELPA policy (ex: IEE criteria)
Board Policy
District forms
Persuasive Authority (not binding)/Guidance:
OAH cases
OCR – “Dear Colleague Letters”
OSEP
OSERS

8. Components of FAPE (Rowley Standard)
Substance
Procedures
FAPE
Rowley Standard: Important US Supreme Court Case laying the framework that is followed today.
The inquiry in suits brought under §1415(e)(2) is twofold:
First, has the State complied with the procedures set forth in the IDEA?
And second, is the individualized education program developed through the IDEA procedures reasonably calculated to enable the child to receive
educational benefits? (Substantive Component)
If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more. (458
US 176, 204) As the analysis goes, if the school district has not complied with the Federally mandated procedures, and if the violation resulted in some form of
significant harm to the student, all educational decision making from the point of the violation forward is suspect. What this means is that judges will be more likely to step in and substitute their judgment for that of the educators, given a significant procedural violation. If, on the other hand, the school district has complied with all of the procedures in the IDEA, then the analysis requires asking the second "Rowley question," regarding the substantive components of the child’s program/IEP.
Board of Ed. of Hendrick Hudson Central School Dist. v. Rowley 458 U.S. 176 (1982)

9. Procedural Substantive
Two Parts to FAPE
Procedural
Substantive
District’s must comply with all the procedures set forth in the IDEA
Examples of Procedural violations:
Failure to invite appropriate IEP members
Failure to send IEP notice
Failure to allow parent participation
Failure to provide PWN
Is the IEP reasonably calculated to provide the student with educational benefit?
Student’s program must:
Meet student’s needs
Provide some educational benefit
Ensure placement in LRE
Comport with IEP
May be a good slide to mention that the substantive issue will be addressed in further detail in PART 2 presentation (titled: Complying with Substantive FAPE and IEP Requirements). 9

10. Potential Consequences
Failure to comply:
Due process hearings before OAH
Complaints:
CDE
OCR
Lawsuits
Lawsuits can be in state or federal court for violations of the IDEA and/or anti-discrimination laws or come on appeal from OAH cases.
May be a good slide to mention that PART 3 presentation will address in further detail issues surrounding due process and complaints.

11. What is Special Education?
Special Education means
instruction specially designed to meet the unique needs of a child with a disability
“Special education” is instruction specially designed to meet the unique needs of a child with a disability. (20 U.S.C. § 1401(29).)
California Ed Code is even more specific, essentially stating that special education means specially designed instruction, at no cost to the parent, to meet the unique needs of individuals with exceptional needs, including instruction conducted in the classroom, in the home, in hospitals and institutions, and other settings, and instruction in physical education. (Cal Ed. Code section )
See: Ed. Code Section 56031:
(a) “Special education,” in accordance with Section 1401(29) of Title 20 of the United States Code, means specially designed instruction, at no cost to the parent, to meet the unique needs of individuals with exceptional needs, including instruction conducted in the classroom, in the home, in hospitals and institutions, and other settings, and instruction in physical education.
(b) In accordance with Section of Title 34 of the Code of Federal Regulations, special education includes each of the following, if the services otherwise meet the requirements of subdivision (a):
(1) Speech-language pathology services, or any other designated instruction and service or related service, pursuant to Section 56363, if the service is considered special education rather than a designated instruction and service or related service under state standards.
(2) Travel training.
(3) Vocational education.
(c) Transition services for individuals with exceptional needs may be special education, in accordance with Section (b) of Title 34 of the Code of Federal Regulations, if provided as specially designed instruction, or a related service, if required to assist an individual with exceptional needs to benefit from special education.
(d) Individuals with exceptional needs shall be grouped for instructional purposes according to their instructional needs.
(Amended by Stats. 2007, Ch. 454, Sec. 6. Effective October 10, 2007.)

12. Closing thoughts on Rowley Standard
Rowley on educational benefit:
“Basic floor of opportunity”
Cadillac vs. Chevrolet
Ninth Circuit interpretation:
“Some educational benefit”
“Meaningful educational benefit”
Rowley decision is arguably the most important case interpreting special education law and good to keep in mind throughout the presentation(s).
Ninth Circuit decisions interpreted Rowley to mean that the IDEA does not require districts to provide students with the best or optimal education or to ensure that students receive services to enable them to maximize their potential. (Also see: Lenn v. Portland Sch. Comm., 998 F.2d 1083 (1st Cir. 1993).)
Instead, district's are obligated only to offer services that provide students with "some educational benefit.“ Courts sometimes refer to this as the Cadillac versus Chevrolet argument, with the student entitled to a serviceable Chevrolet, not a Cadillac. (Doe ex rel. Doe v. Bd. of Ed. of Tullahoma City Sch., 9 F.3d 455, (6th Cir. 1993).)
Some courts further refined the "some educational benefit" standard to require students to achieve "meaningful benefit" or to make "meaningful progress" in the areas where the student's disability affects their education. (Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 347 (5th Cir. 2000); Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999) (IDEA requires significant learning and meaningful benefit); M.C. ex rel. J.C. v. C. Regl. Sch. Dist., 81 F.3d 389 (3d Cir. 1996); Doe, 9 F.3d at 459; Roland M. v. Concord Sch. Comm., 910 F.2d 983, 991 (1st Cir. 1990) ("Congress indubitably desired effective results and demonstrable improvement" for the Act's beneficiaries); Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636 (4th Cir. 1985).) These courts held that while the IDEA does not require a district to maximize a student's potential, the student's potential and ability must be considered when determining whether he or she progressed and received educational benefit.
“Meaningful educational benefit” - N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, (9th Cir. 2008)
“Some educational benefit” - K.M. v. Tustin Unified School District (9th Cir. 2013) 725 F.3d 1088

13. Continuum of Placement Options
Most Restrictive
Home instruction
Non-classroom settings
State special schools
NPS or NPA
Special classes
DIS
RSP
Least Restrictive
Regular education

14. Placement Generally - LRE
Look least restrictive environment (LRE) in which the student can receive a meaningful educational benefit
Holland factors:
Educational benefits
Nonacademic benefits
Effect of student on teacher and peers

15. IDEA Eligibility

16. Federal and state regulations
Who is Eligible?
Federal and state regulations
13 categories of eligibility
Changes made to eligibility in 2014
The qualifying areas of impairment set out in state eligibility regulations are:
(1) Hearing impaired;
(2) Both hearing and visually impaired;
(3) Speech or language impaired;
(4) Visually impaired;
(5) Severely orthopedically impaired;
(6) Impaired in strength, vitality, or alertness due to chronic or acute health problems (other health impaired);
(7) Exhibiting autistic-like behaviors;
(8) Mentally retarded;
(9) Seriously emotionally disturbed;
(10) Learning disabled;
(11) Multiple disabilities; and
(12) Traumatic brain injury.
[34 C.F.R. Sec ; 5 C.C.R. Sec ]
CDE Issued the following notice regarding the 2014 changes to eligibility:
On July 1, 2014, amendments to the California Code of Regulations, Title 5, sections 300–3088 will go into effect. These regulations are pertinent to the provision of special education for students with disabilities and can be found online at the Web site maintained by the California Office of Administrative Law at
Many of the regulations that govern the provision of special education in California have not been updated since the State Board of Education adopted substantive amendments in December Since those regulations became operative on April 20, 1988, there have been numerous changes to state statutes and federal statutes and regulations. The purpose of the recent rulemaking process was to update these regulations by bringing them into alignment with existing state statutes and federal requirements.
Specifically, the amendments sought to achieve the following purposes:
To repeal subdivisions that no longer have the force of law because of statutory changes.
To delete redundant references to criteria defined in statute or elsewhere in the regulations.
To update eligibility criteria to reflect federal requirements.
To align the eligibility criteria for infants and toddlers with exceptional needs to current law.
To update service provider requirements for all qualified providers, both for students in public schools and nonpublic schools and agencies.
To update language to promote consistency in the regulations (e.g., by replacing “local educational agency” with “LEA” and replacing “individualized education program” with “IEP”). 16

17. Eligibility Meets a disabling Displays need for (two part standard)
But Wait, There’s More…
Eligibility
(two part standard)
Meets a disabling
category; AND
Displays need for
services
Eligibility for a qualifying disability:
Meet eligibility for one of 13 disabling categories; AND
By reason thereof, need/require special education and related services.
See Title 5 California Code of Regulations (C.C.R.) Sec These regulations went into effect March 2, The criteria generally parallel the federal guidelines in defining “children with disabilities.” [34 Code of Federal Regulations (C.F.R.) Sec ] Eligibility criteria under state law cannot be narrower than eligibility criteria under federal guidelines.
Together, the federal and state regulations establish eligibility criteria for all students seeking special education services. In order to qualify as an individual with exceptional needs under the eligibility criteria, the assessment must demonstrate that the student’s impairment adversely affects her educational performance and requires special education.

18. Who is tasked with determining a student’s eligibility?
Deciding Eligibility
Who is tasked with determining a student’s eligibility?
IEP team:
Parents
Educators
Assessors
IEP is the roadmap that defines the course of special education services for each student with a disability.
The IEP team (made up of qualified professionals and the parents) makes the actual determination of eligibility for special education and related services, based upon the assessment reports. The team will consider all relevant and available information for the child (including assessment reports) to determine if the child meets the 2-part test for eligibility:
Meets one of the 13 disabling categories; and
By reason thereof, requires special education and related services.
[20 U.S.C. Sec. 1414(b)(4) & (5); 34 C.F.R. Secs (a)(1) & (f).]
The District must ensure that the parents are equal participants of the IEP team who are allowed to fully participate. [Cal. Ed. Code Sec ] If parents do not participate fully, then this could be viewed by OAH/courts as a procedural failure that would rise to the level of a FAPE violation. Recall Rowley standard.

19. Eligibility Age Requirements
Minimum Age
Maximum Age
Birth
3rd Birthday
Regular HS diploma
22nd Birthday
Generally: The law requires schools to provide disabled students with special education services from age 3 until age 22, or until they graduate from high school, whichever happens first.
MIN AGE:
In terms of minimum age, a child may be eligible for special education services, in the form of early intervention services, from birth.
MAX AGE:
In terms of maximum age (and assuming the student has not yet graduated from high school with a regular diploma), a student may continue to be eligible for special education past their 18th birthday [Cal. Ed. Code Sec (c)(4)].
A student between the ages of 19 and 21 may continue in special education when the following conditions exist:
(1) She must have been in special education at the time she turned 19;
(2) She has not met her “proficiency standards”
(3) She has not completed her “prescribed course of study” or
(4) She has not graduated from high school with a regular high school diploma.
[34 C.F.R. Sec ; Cal. Ed. Code Sec (c)(4) & ] 19

20. Child Find

21. Affirmative obligation
What is “Child Find”?
Affirmative obligation
Ongoing obligation
Identify and evaluate
Suspected disability
“The IDEA imposes an affirmative obligation on the school district to identify and evaluate children with disabilities.” (Seattle Sch. Dist. No. 1 v. B.S. (9th Cir. 1996) 82 F. 3d 1493.)
The duty to consider eligibility does not lie with the parent, but rather lies with the district. A school district cannot abdicate their affirmative duties under the IDEA. (Student v. Newport Mesa USD (OAH 2013) No )
“The purpose of the child-find evaluation is to provide access to special education.”
(Fitzgerald v. Camdenton R-III School Dist. (8th Cir. 2006) 439 F.3d 773, 776.)

22. Affirmative Obligation to Find:
Children who reside within district boundaries:
Public schools
Private schools
Homeless
Wards of the State
Mobile/Migrant
34 CFR Sec Child find.
(a) General.
(1) The State must have in effect policies and procedures to ensure that--
(i) All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated; and
(ii) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.
District’s can communicate with organizations for the homeless in assisting in identifying children with disabilities. Children not attending typical public schools often fail to be ”found” and are at greater risk.

23. Low Threshold for “Suspecting” a Disability
When is District put on “notice” of suspected disability?
Remember your obligation to respond within reasonable time
The Threshold For Suspecting A Student Has A Disability is Low:
District deemed to have notice if student’s behavior or poor academic performance indicates a possible need for special education.
The duty to assess for exceptional needs is broader than the duty to provide special education, and more easily triggered. In deciding whether there is reason to suspect that a student has exceptional needs, a school district’s appropriate inquiry is whether the student should be referred for an assessment, not whether the student actually qualifies for special education services. (Dept. of Education, State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp. 2d 1190, 1195 (“Cari Rae S.”).) Thus, the suspicion that a student has an impairment that is affecting the student’s educational performance is sufficient to trigger a need for assessment. (See, e.g., Park v. Anaheim Union High School Dist., et al. (9th Cir. 2006) 464 F.3d 1025, 1032 [“The District is not required to assess double vision or optic nerve damage if it does not affect a child's educational needs”], citing Ed. Code, § ) A school district’s duty to assess a student’s eligibility for special education and related services is also triggered by any request for special education or assessment from the student’s parent. (Cal. Code Regs., tit. 5, § 3021(a).) If the parent’s request is verbal, the district must offer to assist the parent in preparing a written request. (Ibid.)
District must respond within a reasonable time after receiving notice of a potential disability.
Child Find: It is also an opportunity to:
Lay the foundation for appropriate eligibility and services.
Set course for the IEP team.
Preserve the right to defend your assessments.

24. Agenda for Today Finish From Last Week Child Find Procedural FAPE
IEP Basics
PWN
Discuss Rowley (Substantive FAPE)
Discuss “Paper Topics”
Anything from “Best Practices”?
Next Week
Assessments & IEEs
Timothy O. and OSEP Letter re: SLD/Dyslexia
“Best Practices” 433 – 434 on hold till next week

25. WATCH OUT: Non-Academic Factors
Provide examples here. Major pitfall.
Child-find obligations are BROADLY interpreted to include the child’s academic, social, health, emotional, communicative, physical, and vocational needs. (Seattle Sch. Dist. No. 1 v. B.S. (9th Cir. 1996) 82 F. 3d 1493.)
Child find duties apply even when the student is advancing from grade to grade and even if the child is making straight A’s.
Always consider non-academic factors, including:
Social-emotional
Health/Medical
Behavior
Truancy

26. Child-Find Next Steps Begin assessment process
Determine areas to assess
Be aware of timelines (procedural issues)
Parents have at least 15 days from receipt of the proposed AP.
Once parents sign AP, 60 day timeline begins.
Ed. Code section The primary timelines affecting special education programs
are as follows:
(a) A proposed assessment plan shall be developed within 15
calendar days of referral for assessment, not counting calendar days
between the pupil's regular school sessions or terms or calendar days
of school vacation in excess of five schooldays, from the date of
receipt of the referral, unless the parent or guardian agrees in
writing to an extension, pursuant to subdivision (a) of Section
56321.
(b) A parent or guardian shall have at least 15 calendar days from
the receipt of the proposed assessment plan to arrive at a decision,
pursuant to subdivision (c) of Section
(c) Once a child has been referred for an initial assessment to
determine whether the child is an individual with exceptional needs
and to determine the educational needs of the child, these
determinations shall be made, and an individualized education program
team meeting shall occur within 60 days of receiving parental
consent for the assessment, pursuant to subdivision (a) of Section
, except as specified in subdivision (b) of that section, and
pursuant to Section

27. Referrals for Special Education
Who can refer?
Parent
Teacher
SST/RTI process
Don’t delay!
Ed. Code "Referral for assessment" means any written request for
assessment to identify an individual with exceptional needs made by
any of the following:
(a) A parent or guardian of the individual.
(b) A teacher or other service provider of the individual.
(c) A foster parent of the individual, consistent with the
limitations contained in federal law.
A student cannot qualify to receive special education services until after the school has tried to meet his or her needs within the parameters of the general education program. Educators typically attempt a series of informal strategies to address struggling students’ needs before employing the formal special education process. Two such approaches include Student Study Teams (SSTs) and Response to Intervention (RtI). The SST—a group that usually includes the student’s school–site administrator, teacher, and parent—typically discusses the student’s progress and identifies in–class strategies for the classroom teacher to try. Requirements of SST process is a function of school board policies and procedures and not found in law. The RtI is an instructional approach designed to identify struggling students and provide interventions explicitly targeted to meet their needs.
No minimum number of SST meetings that can/should be conducted before referral for special education, but balance with LOW THRESHOLD standard and obligation not to delay.
Ed Code A pupil shall be referred for special educational
instruction and services only after the resources of the regular
education program have been considered and, where appropriate,
utilized.
VERSES
5 CCR 3021(a) All referrals for special education and related services shall initiate the assessment process and shall be documented. When a verbal referral is made, staff of the school district, SELPA, or county office shall offer assistance to the individual in making a request in writing, and shall assist the individual if the individual requests such assistance.

28. Let’s Illustrate with a Hypo:
Student, Bonnie B., recently began Kindergarten in the District.
On the day Bonnie enrolled, parents informed the District that she was formally diagnosed with ADHD and that they were against medicating her.
As she progressed through Kindergarten, teachers noticed off-task behaviors and told administrators that she was difficult to teach, requiring many prompts and suggested special education assessment.
Cannot use the SST/RTI process to delay assessment.
The District Special Ed Director told the teacher “because an SST has not yet been held to look at modifications to try in the general education classroom prior to an assessment, Bonnie cannot be assessed for special education.”
DISCUSS.

29. Test Your Knowledge:
Because a parent or child’s doctor regards the child as being disabled, does that make the child eligible under the IDEA?
Not necessarily. The proper inquiry is whether the child, because of an actual disability, needs special ed services. (2 part Eligibility standard) This inquiry is made by the entire IEP team, including parents.

30. Test Your Knowledge:
Can poor behavior and truancy trigger the district's child-find obligation?
True or False? T

31. Procedural FAPE

32. Types of Procedural Notices
Transfer of rights/ITP
Procedural safeguards
IEP notice of meeting
Prior written notice
Manifestation determination

33. ITP: Post High School Transition
ITPs defined
Procedural timelines
Transfer of rights
Purpose of the ITP is to ensure that the student continues to receive the support needed.
Federal special education law requires that there be transitional planning services for students with disabilities regardless of which agencies provide support or educational services to the student. Beginning no later than the first Individualized Education Program (IEP) held after a student turns 16 (or younger if determined appropriate by the IEP team) and updated annually, the IEP must contain a statement of appropriate measurable postsecondary goals. The goals must be based on age appropriate transition assessments related to training, education, employment and independent living skills where appropriate. The IEP must also contain a statement of needed transition services for the student that focus on the student’s courses of study (such as participation in advanced- placement courses or a vocational education program). In addition, the IEP must contain, when appropriate, a statement of the interagency responsibilities.
[20 United States Code (U.S.C.) Sec. 1414(d)(1)(A); 34 Code of Federal Regulations (C.F.R.) Secs (b) & (b)(3).]

34. Procedural Safeguards
Why
When
Parents rights to:
Participate in meetings
Examine records
Request IEE
IEP meetings
PWN
Parent requests
Assessments
When Congress enacted Public Law as the Education for All Handicapped Children's Act in 1975, they included a system of procedural safeguards designed to protect the rights of children with disabilities and their parents. During subsequent reauthorizations of the law, now known as the Individuals with Disabilities Education Act, Congress maintained and added to these safeguards.
Procedural safeguards include the right to participate in all meetings, to examine all educational records, and to obtain an independent educational evaluation (IEE) of the child. Parents have the right to written notice when the school proposes to change or refuses to change the identification, evaluation or placement of a child 34

35. IEP Notice of Meeting Timelines
Remember, procedural requirement to ensure parent participation.
Query: When should notice go out to parents?
34 CFR Sec Parent participation.
(a) Public agency responsibility-general. Each public agency must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting or are afforded the opportunity to participate, including--
(1) Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b) Information provided to parents.
(1) The notice required under paragraph (a)(1) of this section must--
(i) Indicate the purpose, time, and location of the meeting and who will be in attendance; and
(ii) Inform the parents of the provisions in Sec (a)(6) and (c) (relating to the participation of other individuals on the IEP Team who have knowledge or special expertise about the child), and Sec (f) (relating to the participation of the Part C service coordinator or other representatives of the Part C system at the initial IEP Team meeting for a child previously served under Part C of the Act).

36. Procedures on Scheduling IEP Meetings
What if parent requests to meet at Starbucks?
What if parent can only meet after work at 6pm?
IEP meetings must be held at a mutually agreeable time and place.
IEP meetings must be held at a
mutually agreeable time and place

37. IEP Planning Checklist
Practice Tip
IEP Planning Checklist
IEP Meeting Agenda
See our One Sheet “IEP Planning Checklist” in the handouts to help plan for the IEP meeting, including scheduling the meeting, the IEP meeting notice, gathering documents and information and deciding on a pre-meeting.
Also see our One Sheet “Sample IEP Meeting Agenda” in the handouts which has a list of potential IEP agenda items in the order that those items should be discussed by the team. Sometimes parents or their attorneys may ask the team to skip items and discuss placement first. But note that a decision about services and placement should be based on the child’s assessment results, present levels, and areas of need.

38. Prior Written Notice Letter
Proposes or refuses action
Action must materially affect program
Provides reason for determination
Documents course of action
Prior written notice is a document that is required following the proposal and/or refusal related to the initiation or change in the identification, evaluation, educational placement, or offer of FAPE (34 CFR ).

39. Prior Written Notice Elements
Description of action
Explanation of why
Options considered
Basis
Other relevant factors
Procedural safeguards
Sources
A prior written notice must include 7 required elements, including:
A description of the action proposed or refused by the LEA/district;
An explanation of why the LEA/district proposes or refuses to take the action;
A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;
Sources for parents to contact to obtain assistance in understanding the provisions of this part;
A description of other options considered by the IEP Team and the reason why those options were rejected; and
A description of the factors that are relevant to the LEA’s/district’s proposal or refusal.
In addition to including these elements, PWN must be provided in language that is understandable to parents and the general public, and should be provided in the native language of the parent unless it is not feasible to do so. In order to ensure that the PWN is understandable, it is recommended that it be written without the use of acronyms or abbreviations. It should serve as a stand-alone document that can be understood by a person who does not have other reports and/or IEP documents to which they may refer.
Phrases such as “N/A” and “see above” should be avoided.

40. Examples of When PWN is Triggered
Change of placement
Assessment
IEE
Graduation
Parent requests
Can you think of more?

41. Prior Written Notice Checklist Prior Written Notice – Best Practices
Practice Tip
Prior Written Notice Checklist
Prior Written Notice – Best Practices
See the One Sheet “Prior Written Notice Checklist” included in the handouts which lists PWN requirements.
See the One Sheet “Prior Written Notice – Best Practices” with tips on when to send PWNs, including the best practice of sending PWNs within 15 calendar days.

42. Take-Aways from Part 1 Eligibility is a 2-part test
Child-find is the district’s affirmative obligation (low and broad)
Compliance with procedures is important to FAPE 42 42

43. The Rowley Case: Substantive FAPE
Facts: What were the underlying facts of the case?
Age? Disability? IEP offer? Parent request? Lower court rulings?
Issues: What is/are the legal issues in dispute?
Rule of Law
EHA
IDEA
Analysis: How did the court apply the facts to the law?
Conclusion: What was the court’s final conclusion?

44. Paper Topics
1,000 words on a legal use
Due 11/09/16

45. Questions
Questions Slide 45 45

46. Back Slide
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