1. JENNIFER SEGAL JSEGAL@BRUMAN.COM MIKE BENDER MBENDER@BRUMAN.COM BRUSTEIN & MANASEVIT, PLLC FALL FORUM 2014 Ensuring Students with Disabilities are Served

2. Topics Covered BRUSTEIN & MANASEVIT, PLLC 2 Discipline Response to Intervention IEP Teams Documentation Payment for related services and residential treatment

3. Legal Resources BRUSTEIN & MANASEVIT, PLLC 3 IDEA Website - http://idea.ed.gov/http://idea.ed.gov/ Code of Federal Regulations: 34 CFR Part 300 http://www.ecfr.gov/cgi-bin/text- idx?tpl=/ecfrbrowse/Title34/34cfr300_main_02.tpl http://www.ecfr.gov/cgi-bin/text- idx?tpl=/ecfrbrowse/Title34/34cfr300_main_02.tpl http://idea.ed.gov/download/finalregulations.pdf

4. BRUSTEIN & MANASEVIT, PLLC 4 DISCIPLINE

5. What To Do When a Child is Disciplined? 34 CFR §§ 300.530 – 300.536 BRUSTEIN & MANASEVIT, PLLC 5 1. Is the child identified as a child with a disability? o NO = No IDEA protections. (34 CFR § 300.534(d))  Has an evaluation been requested after or during discipline?  If yes, then expedited evaluations  Stay Put does not apply. Child remains where placed by the LEA. o YES = Determine if Change of Placement o NO, BUT the public agency had knowledge that the child was a child with a disability before the behavior occurred = Determine if Change of Placement. (34 CFR § 300.534(a-b)) Parent expressed in writing that child needed special education services Parent requested an evaluation School personnel expressed specific concerns about a pattern of behaviors to the director of special education or other supervisory personnel

6. Was the Removal a Change of Placement? 34 CFR §§ 300.530 – 300.536 BRUSTEIN & MANASEVIT, PLLC 6 2. Was the Removal a Change of Placement?  Based on “Unique Circumstances of Child” (34 CFR § 300.530(a))  Removal ≠ change of placement (34 CFR § 300.536)  10 consecutive school days or less  Series of short-term removals that are not a pattern (even if greater then 10 days) Determined by the public agency, but subject to review through due process (34 CFR § 300.536 (a)(2)) (a) Length of each removal; (b) Total time removed; (c) Proximity of removal; (d) Behavior not substantially similar; etc.

7. Was the Removal a Change in Placement? 34 CFR §§ 300.530 – 300.536 BRUSTEIN & MANASEVIT, PLLC 7  Removal = change of placement (34 CFR § 300.536)  Exceeds 10 consecutive school days  Series of short-term removals that are a pattern  Special Circumstances 45-day removal – drugs, weapons, serious bodily injury to another (34 CFR § 300.530(g)) Hearing officer removal - 45-day removal requested by LEA through due process bc substantially likely to injure self or others in current placement (34 CFR § 300.532)  Parent Notification (34 CFR § 300.530(h))

8. Case Study #1: 45 Day Removal BRUSTEIN & MANASEVIT, PLLC 8 D.R. is a second grader with an IEP and a primary disability of ED. Last Tuesday, D.R. and a friend were drawing during an after-school enrichment program held by the school. D.R. realized that small pencil sharpener had a blade in it. After a little finagling, D.R. was able to remove this blade and began to pretend to have a sword fight with his friend. The play sword-fighting quickly turned south and D.R. cut his friend’s finger. D.R.’s friend required three stitches. Believing that D.R. had used the blade as a weapon to cause serious bodily injury, the school removed D.R. for 45 days. Question: Was the school justified in removing D.R. for 45 days?

9. Was the Removal a Change in Placement? 34 CFR §§ 300.530 – 300.536 BRUSTEIN & MANASEVIT, PLLC 9 o Change of Placement?  No: Done (document decision) (possible exception 34 CFR § 300.530(d)(4))  Yes: Manifestation Determination (34 CFR § 300.530(e));  Functional Behavior Assessment; and  Behavior Intervention Plan (34 CFR § 300.530(d)(1)(ii), (f)(1)(i))

10. A Manifestation of the Child’s Disability? 34 CFR §§ 300.530 – 300.536 BRUSTEIN & MANASEVIT, PLLC 10 3. Was the behavior a Manifestation of the Child’s Disability? (Decided By IEP Team)  No – Stay Put does not apply (300 CFR § 300.530(c))  Yes – Manifestation Determination (300 CFR § 300.530(f)) Stay Put: Child Remains in School Exceptions 45-Day Removal

11. Case Study #2: MDR BRUSTEIN & MANASEVIT, PLLC 11 A.D. is a student diagnosed with ADHD and found eligible for special education and related services with a primary disability of OHI. One day in class, A.D. begins to repeatedly poke another student with a pencil, which causes a fight. The teacher sends A.D. to the principal’s office to reset. Within ten minutes of entering the principal’s office, A.D. begins talking loudly with another student and is removed to an empty special education meeting room. While in the SPED meeting room, A.D. sits calmly for 10 minutes but then, angry at being sent out twice, gets up and flips over the SPED director’s chair. He is then calm for another 10 minutes before knocking everything except the laptop off the director’s desk. Once discovered, A.D. is suspended for 3 days, which brings his total days suspended over 10. Question: Was the student’s behavior a manifestation of the student’s disability?

12. Are Services Required? 34 CFR § 300.530(d)(4) & (d)(5) BRUSTEIN & MANASEVIT, PLLC 12 4. Are services required? o If not a change of placement: MAYBE o 10 day rule: no services required for first 10 school days of disciplinary removal in school year unless services are provided to a child without disabilities who is similarly removed.  LEA can always decide to provide services even when not required o If a change of placement: YES (34 CFR § 300.530(d))  IEP team decides on services (allow child to continue to participate in general education curriculum, although in another setting and progress on IEP); services mandatory  45-day removal, services may be determined by Hearing Officer

13. Disciplinary Options BRUSTEIN & MANASEVIT, PLLC 13 Identified as Child with a Disability? Yes Change of Placement? No Done. Document! Yes – Provide Services and hold MDR. Manifestation of Disability? No No Stay Put. Yes Stay Put. No, BUTNo No IDEA Protections

14. Best Practices BRUSTEIN & MANASEVIT, PLLC 14 Written policies and procedures Staff training on policies and procedures Regular communication between special education department and administration (or staff responsible for discipline) Established forms and form letters

15. Expedited Hearings BRUSTEIN & MANASEVIT, PLLC 15 o Expedited Hearing? (34 CFR § 300.532)  Parent Appeals Manifestation Determination  LEA Requests 45-day removal by hearing officer o Timeframes?  Hearing – 20 school days of date complaint filed  Resolution meeting (unless waived) w/in 7 days of date complaint notice received  Hearing proceeds, unless matter resolved w/15 days of date complaint received  Decision – 10 school days after hearing o Placement during Appeal? (34 CFR § 300.533)  Child must remain in the alternative education setting pending the decision of the hearing officer or until the expiration of the 45-day placement or disciplinary action, whichever occurs first.

16. Discipline and Civil Rights BRUSTEIN & MANASEVIT, PLLC 16 “[E]vidence of significant disparities in the use of discipline and aversive techniques for students with disabilities raises particular concern for the Departments.”  Additionally, SWDs under IDEA and 504 represent 14% of students, but represent 76% of students who are physically restrained by adults in their schools.  See ED’s Civil Rights Office and DOJ Guidance, January 2014

17. BRUSTEIN & MANASEVIT, PLLC 17 Response to Intervention (RTI)

18. BRUSTEIN & MANASEVIT, PLLC 18 Process for determining that a child is a child with a specific learning disability based on a child’s response to scientific, research-based intervention. Why is RTI included in IDEA?  To ensure that underachievement in a child suspected of having specific learning disability (SLD) is not due to lack of appropriate instruction  Intent of Congress to more accurately distinguish between children with SLDs from those whose learning difficulties could be resolved with more specific, scientifically based, general education interventions.

19. Response to Intervention (cont.) BRUSTEIN & MANASEVIT, PLLC 19 What about RTI for determining other disabilities?  Court found that use of RTI did not relieve obligation to:  (a) evaluate the Student for other IDEA disabilities, such as Other Health Impairment, including ADHD;  (b) use a variety of assessment tools; and  (c) complete the evaluation within the timeline established by IDEA and its implementing regulations.

20. Response to Intervention (cont.) BRUSTEIN & MANASEVIT, PLLC 20 If you use RTI Strategies, LEAs must promptly request parental consent to evaluate a child if the child has not made adequate progress after an appropriate period of time.  However, the regulations do not specify a timeline for using RTI or define “adequate progress.”  Timeline will vary depending on circumstances but generally not acceptable to wait several months * Parent may request an evaluation at any time during the RTI process (RTI does not replace evaluations)

21. Response to Intervention (cont.) BRUSTEIN & MANASEVIT, PLLC 21 o Allowable uses of IDEA funds for RTI: CEIS funds may be used in coordination with ESEA funds, but must supplement and not supplant ESEA funds for those activities and must not support students already identified as students with disabilities (IDEA ARRA guidance) CEIS funds may be used for behavioral interventions for non- identified students who need additional support, as part of school climate reform (ED Letter, Sept 2013 on maximizing flexibility) If IDEA consolidated in schoolwide plan, may use consolidated IDEA program funds to implement RTI (IDEA ARRA guidance)

22. Best Practices BRUSTEIN & MANASEVIT, PLLC 22 Written policies and procedures (including definitions of “adequate progress” and “appropriate period of time”) Training to staff on policies and procedures  Provide some training even to staff not directly involved Regular communication between RTI staff and Special Education Department Clear communication to parents regarding what RTI is and their child’s progress Take RTI meeting notes

23. BRUSTEIN & MANASEVIT, PLLC 23 IEP TEAM MEETINGS

24. Types of Meetings BRUSTEIN & MANASEVIT, PLLC 24 Eligibility IEP Development Annual MDR Other

25. Responsibilities of IEP Teams BRUSTEIN & MANASEVIT, PLLC 25 Review evaluations and data Determine eligibility Develop IEP  Placement  Services  Supports Review IEP annually and when necessary Manifestation determination when necessary  Appropriate services if a change in placement is warranted Address other concerns as need arises

26. IEP Team Members 34 C.F.R. § 300.321 BRUSTEIN & MANASEVIT, PLLC 26 CORE MEMBERS  Parent  At least 1 regular ed teacher, if child participating  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 on child  Related services personnel  Child, when appropriate  Invite transition service agency representatives  Invite Part C service coordinator/rep, if parent requests

27. Who Can Miss an IEP Meeting? BRUSTEIN & MANASEVIT, PLLC 27 Required members may be absent:  For all or part of meeting, if  LEA and parent agree in writing Meeting without parent:  Permitted, but need documentation of attempts to arrange mutually agreed on time and place. 34 C.F.R. § 300.322(d)

28. What if a Member Misses an IEP Meeting ? BRUSTEIN & MANASEVIT, PLLC 28 If the missing IEP team member’s area or related service is not modified or discussed  No input is needed If the missing IEP team member’s area or related service will be modified or discussed  Member must provide written input on development of the IEP prior to the meeting

29. Best Practices BRUSTEIN & MANASEVIT, PLLC 29 Written policies and procedures Training staff on policies and procedures Ensure an LEA representative with decision making authority is present Hold meeting if a new concern arises or services change – don’t wait for the annual review meeting Maintain documentation  Meeting invitation  Attempts to schedule meeting (if no parent)  Written input if appropriate  Meeting notes

30. Documentation BRUSTEIN & MANASEVIT, PLLC 30 “I’m a hoarder. For me, documentation has always been key, and I’ve kept everything from my past.” – Diane Keaton

31. The Basics BRUSTEIN & MANASEVIT, PLLC 31 IEPs Evaluations Meeting Notes Service Tracking Logs  See EDGAR 76.731 (grantees and subgrantees must maintain records to demonstrate compliance with all program requirements) Where and how are these documents maintained?

32. Prior Written Notice 34 C.F.R. § 300.503 BRUSTEIN & MANASEVIT, PLLC 32 Must be given to parents if the LEA proposes or refuses to initiate or change the following:  Evaluation of a child,  Identification of a child,  Educational placement of a child, or  Provision of FAPE to a child. Notice Must Include: reasons for action or refusal and include available procedural safeguards

33. Progress Data BRUSTEIN & MANASEVIT, PLLC 33 Progress Reports  Detailed information on progress (or lack of progress) on each goal  How often? Testing Data  State Tests  Academic Achievement

34. Behavior Data BRUSTEIN & MANASEVIT, PLLC 34 Behavior tracking logs Behavior Intervention Plan Incident Reports Suspension/Expulsion records Letters re: Discipline  Align general disciplinary communications with IDEA requirements  Clearly indicate what the process is for students with disabilities

35. Communication with Parent BRUSTEIN & MANASEVIT, PLLC 33 Letters Phone Log Emails The single biggest problem in communication is the illusion that it has taken place. - George Bernard Shaw

36. Transmitting Student Records BRUSTEIN & MANASEVIT, PLLC 36 Generally, follow Family Educational Rights and Privacy Act (FERPA) Except if student transfers to a private school  LEA must obtain parental consent prior to releasing personally identifiable records to the private school Parent request for student records  SEA/LEA has 45 days to respond  If third party (attorney/advocate) is requesting records, must have release signed by parents  What must be provided?

37. Best Practices BRUSTEIN & MANASEVIT, PLLC 37 Written policies and procedures  What must be retained?  Where are records retained? Training staff on policies and procedures Established forms and other documents Monitoring records and data

38. BRUSTEIN & MANASEVIT, PLLC 38 Payment for Related Services and Residential Treatment

39. Related Services BRUSTEIN & MANASEVIT, PLLC 39 Transportation, developmental, corrective and other supportive services required to help a disabled child benefit from special education  Includes: interpreting services, physical and occupational therapy, speech-language pathology and audiology, counseling, therapeutic recreation, etc.  Excludes: surgically implanted medical device or replacement  34 C.F.R. § 300.34

40. BRUSTEIN & MANASEVIT, PLLC 40 To determine whether a service is a related service, courts will consider: 1. whether the service is required to enable the child to receive an educational benefit, and 2. if it is excluded as a medical service. Related Services

41. BRUSTEIN & MANASEVIT, PLLC 41 Responsibility of public agency to provide service to student if the court determines:  the service is required for the student to receive an educational benefit; and  it does not fall within the medical exception Tatro v. State of Texas, 625 F.2d 557 (5 th Cir. 1980) (finding that Clean Intermittent Catheterization (CIC) fell within the statutory definition of related services because without CIC the child could not be present in the classroom at all and thus could not benefit from her special education). Related Services

42. BRUSTEIN & MANASEVIT, PLLC 42 If the service is:  Not educational in nature; and  Does not impact the student’s ability to benefit from his or her education, Such service would not be considered a related service that a District would have to provide under the IDEA. Fetto v. Sergi, 181 F. Supp. 2d 53, 60 (D.Conn. 2001) (hearing officer found that several wrap-around services, including respite care in the home and a community mentor, were not educational in nature and therefore the District was not required to pay for such services) District of Columbia Public Schools, 110 LRP 30885 (July 30, 2009) (hearing officer found that wrap-around services, including counseling and community support services were required for student to be successful in attending school and obtaining an educational benefit) Related Services

43. Residential Treatment BRUSTEIN & MANASEVIT, PLLC 43 In the context of residential placements, where a related service is necessary for an educational purpose, it is reimbursable under the IDEA. Where the related service has a predominantly medical purpose, it is not reimbursable.  Kruelle v. New Castle County School District, 642 F.2d 687 (3rd Cir. 1981); 34 C.F.R. 300.104. Courts have found that where the requirement for a residential placement based on medical, social or emotional problems that are segregable from the learning process, the residential treatment was for a medical purpose and therefore not reimbursable.  Mary T. v. Sch. Dist. or Philadelphia, 575 F.3d 235 (3 rd Cir. 2009)(citing Kruelle, 642 F.2d 687).

44. BRUSTEIN & MANASEVIT, PLLC 44 Educational Benefit: is the IEP likely to produce progress, not regression, and does the IEP afford the student with an opportunity greater than mere trivial advancement? M.K. ex rel. Mrs. K v. Segri, 554 F. Supp. 2d 201, 222 (D.Conn. 2008) (the student had significant behavior problems at home but continued to make satisfactory academic progress in school, the court found that the student’s residential placement was not a related service for which the school district could be held financially responsible) Mrs. B. v. Milford Bd. of Educ., 103 F.3d 114 (2d Cir. 1997) (the student’s academic regression was primarily due to student's emotional issues which could not be dealt with outside of a residential setting, the court found that the District was required to pay for the entire cost of the student’s residential placement) Educational Benefit?

45. Best Practices BRUSTEIN & MANASEVIT, PLLC 45 Written policies and procedures Training to staff on policies and procedures Continuum of services State/District policies on high cost/highly restrictive services

46. BRUSTEIN & MANASEVIT, PLLC 46

47. BRUSTEIN & MANASEVIT, PLLC 47 This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC 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.