Juvenile Defenders OPD JTIP TRAINING Juvenile Defense Training - - PowerPoint PPT Presentation

Special Education Advocacy for Juvenile Defenders

OPD JTIP TRAINING Juvenile Defense Training Academy Race, Equity and Representing Juveniles UW Law School July 22, 2017

Nicole McGrath Attorney

Outline of Presentation

What is Special Education?

• The Individuals with Disabilities Education Act

(IDEA)

• Free Appropriate Public Education (FAPE)
• Child Find for Eligibility
• Discipline of Students with Disabilities—the

Manifestation Determination Review (MDR)

• Section 504 of the Rehabilitation Act

Outline of Presentation

How to Use Special Education Law in Delinquency Cases

• Client Interview
• Obtaining School records
• School Discipline Proceedings
• Pretrial, trial, transfer hearings,

disposition, placement and reentry

Role of Juvenile Defender in Education Advocacy

What is educational advocacy? What is the role of the juvenile defender in educational advocacy?

What is Special Education?

A set of services and protections providing disabled students

• Between the ages of 3 and 21
• With a Free and Appropriate Public Education (FAPE)
• In the Least Restrictive Environment (LRE)
• Includes youth in juvenile facilities

What is Special Education?

• Specially designed instruction, at no cost to the

parents, to meet the unique needs of a disabled child, including:

• Instruction in the classroom, home, hospitals, institutions,

and other settings

• Instruction in physical education
• Speech-language pathology and other related services
• Vocational education

What Special Education is Not

A code word for mental retardation A particular class room Cookie-cutter “one size fits all” services Subject to availability or cost A privilege

Special Education: Our goal is to…

Understand eligibility for special education and Section 504 accommodations. Understand how students are identified for special education and 504. Understand how to craft an IEP that includes the appropriate instruction, supports, services, accommodations, modifications, goals and school placement for an eligible student.

Sources of Special Education Law

Federal Sources

• IDEA 2004 (20 U.S.C. §1400 et al.)
• Federal Regulations (34 C.F.R. 300 et al.)
• Section 504 (of the Rehabilitation Act of 1973);

State Sources

• State Statutes
• Chapter 343 Special Education and Other Specialized Education Services
• State Regulations
• DIVISION 15 SPECIAL EDUCATION OARs 581-015-2000 et al

Local Sources

• Local School District Student Handbooks and Codes of Conduct

Basic Special Education Law

• Eligibility for Special Education and Related Services
• Students are eligible if they have a qualifying disability that adversely

affects educational performance.

• OR provides special education for children 3-21
• Qualifying disabilities are those identified in the Individuals with

Disabilities Education Act (IDEA)

• OR also recognizes pre school children who experiencing physical,

cognitive, communication, social or emotional, or adaptive development as having a developmental delay

• These children will also be eligible for special

education and related services

• A child who is otherwise eligible for special education even if they

make passing grades and advance grade to grade

Entitlements Under the IDEA

• FAPE
• Modifications and Accommodations
• Related Services
• Transition Services
• LRE
• Education with children who are not disabled to the maximum extent

appropriate through the use of supplemental aids and services

• IEP
• An individualized education program developed yearly containing a

student’s services, placement and goals

• Disciplinary Protections
• Other Procedural Safeguards

Everyone’s rights

FAPE

• Free and Appropriate Public Education

LRE

• Least Restricted Environment

504/IDEA/IDEIA/ EI/EISE

• Federal acts for disability

FERPA

• Family Education Rights and Privacy Act

Free Appropriate Public Education (FAPE)

• Free Appropriate Public Education (FAPE)
• Defined by IDEA as:
• Special education and related services that, “(A) have been

provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program requires under [20 U.S.C> § 1414(d)]”

Free Appropriate Public Education (FAPE)

• Until last month
• The right to FAPE does not entitle a child to

the right to have their educational potential maximized – it is an opportunity floor.

• a child’s IEP must be

“reasonably calculated to enable the

child to receive educational benefits”

FAPE

NOW SCOTUS has redefined FAPE Endrew F. v. Douglas County School Dist

137 S.Ct. 988 2017 WL 1066260 15-827 (March 22, 2017)

to meet its substantive obligation under IDEA, schools must offer individual education plan (IEP)

reasonably calculated to enable child to make progress appropriate in light of child's circumstances

Special Education: IDEA Definitions

How is disability defined under IDEA? 11 or 12 Eligibility Categories. Children in care often qualify under categories of

• Emotional Disturbance (ED)
• Learning Disabled (LD) and/or
• Other Health Impaired (OHI).

SPED Eligibility Categories

Intellectual disability; Hearing impairment, including difficulty in hearing and deafness; Speech or language impairment; Visual impairment, including blindness; Deaf-blindness; Emotional disturbance; Orthopedic or other health impairment; Autism; Traumatic brain injury; or Specific learning disabilities.

Parental Rights under the IDEA Parents hold all educational rights for students under the age of 18

Parent can bring knowledgeable individuals to team meetings. Build community-based advocacy team to support child and family. Maintain communication with school officials, including periodic progress reports and participation in school meetings.

Special Education: 504 Definitions

Actual Impairment. History of Impairment. Perceived Impairment. Must substantially impact major life activities such as learning.

SPED: Identification

Child Find: Principle that schools and mandatory reporters should seek

• ut eligible children to identify, locate and evaluate them within and

without their boundary.

Child Find to Eligibility

Complex rules based on age

• Birth to 3
• 3-5
• School age

IDEA Identification

Community Advocates: How do we identify children who may have qualifying disabilities? Multiple Sources: child, family, evaluations (MH assessments or psych. Evaluations), medical evaluations, review of education records, red flags…

IDEA Identification

Red-Flags: poor grades, behavioral difficulties, discipline referrals, poor attendance, negative attitude toward school, inattention at school, socially withdrawn, fighting, off-task, frustration, fear, etc.

• Sec. 504

Students with a broad range of disabilities must have access to school facilities and programs, similar to non-disabled students. Many students who do not qualify for special education are covered by Section 504.

• Sec. 504 Plans

Typically describe accommodations the school will make to facilitate a student’s learning Most do not include the specially designed instruction (special education services) found in an IEP.

• Sec. 504 Evaluation/Eligibility

504 procedures should mirror IDEA processes: consent, evaluation, 504 meeting, written plan with modifications and accommodations, and possibly specially designed instruction.

IDEA: Evaluation

Consent for Testing: Must be informed and received by parent or education surrogate.* caseworker cannot give consent for testing even though they are legal guardian.

IDEA: IEP

Individual Education Plan/Program: individualized, written education plan with short-term objectives and measurable annual goals. IEP Team: school or parent/surrogate invites.

IDEA: Evaluation

Assessment must address all areas of suspected disability. Assessment must be in child’s native language. Minimum testing described for each disability category.

IDEA: Eligibility

Individual Education Plan: in writing, based on assessment and addresses all areas of concern. Timing: IEP must be held within 30 days of eligibility determination. Eligibility meeting after assessments completed.

IEP

• Schools (LEA) usually develop a written plan for

the student’s accommodations.

IDEA: IEP Advocacy

Don’t feel pressured to complete in 1 ½ hours… Ask Who, What, Why, When, Where… Ask evaluator to explain assessment Draft IEP brought to meeting is a draft only.

IEP Advocacy

Advocate role: Participate in all school meetings if possible IEP Meetings: occur at least annually, can be more frequent if necessary to address the child’s needs.

IDEA: IEP Placement

Placement: least restrictive required (LRE) Continuum of placements required.

IDEA: IEP Components

Assistive Technology Transition Services Plan Behavioral Intervention Plan (BIP) supported by a Functional Behavioral Assessment (FBA). Extended School Year (ESY) data keeping and determination.

Section 504 of the Rehabilitation Act

• Children may be eligible for accommodations if they

have disabilities that do not affect educational performance or require special education services.\

• Accommodations include medication and

medical supplies, equipment, low-vision devices, prosthetics, hearing devices of various kinds, assistive technology, auxiliary aids and services, learned behavioral or adaptive neurological modifications, and more.

School Advocacy Wrap Up

Lastly, look for opportunities to stream line planning documents: IEP, ISP, CW plans. Ideally, youth’s transition goals are similar across these domains. Transition Planning at age 16

Implications for Delinquency Cases

• Arrest and Intake
• Detention
• Pretrial Considerations
• Motions to Dismiss
• Competence
• Miranda and Other Waiver Issues
• Transfer Hearings
• Trial
• Mens Rea Defenses
• Trial Accommodations

Implications of IDEA in a Delinquency Case

• Arrest and Intake--
• Disability may be relevant to child’s behavior at arrest.
• If child not getting appropriate services at school to

address disability, argument might be that fixing the IEP would be more effective than court intervention.

Rights of Detained Youth

• Identified youth are entitled to special education

services while incarcerated.

• Identified youth under the age of 22 incarcerated

in adult facilities are still entitled to FAPE.

Pre-trial Considerations

• Motion to Dismiss if behavior is result of manifestation of

disability and school failed to identify the child’s special needs.

• Be proactive with the family to ensure IEP is developed and

refined to meet the child’s needs.

• Ask for a GAL with educational law experience to assist with

navigating the process.

Competency Issues

• Is your client competent to stand trial?
• Low intellectual functioning, communication problems, emotional

disturbances and memory problems are all factors that could raise the need for a competency evaluation.

• Miranda
• Was the waiver knowing, voluntary, and intelligent?
• Age, reading abilities,

education level, and processing issues all are relevant to determining the validity of the Miranda warnings.

Transfer Hearings

• Special education issues are important considerations in transfer

hearings, especially with regard to amenability to treatment.

• If the youth was not properly identified for services, there may

be a strong argument that that could have made a difference in behavior.

• Even if receiving SPED services, may not have been adequate.

Trial

• A youth’s educational disability may be relevant to lack of

capacity to form intent.

• You may need to ask for accommodations in the courtroom

for a disabled client.

• Simplified colloquies
• Slower pace
• Breaks

Implications for Delinquency Cases

• Disposition
• Dispositional Orders
• Placement/Probation conditions
• Post-Disposition
• Aftercare

Disposition

• Dispositional Orders
• Getting language in the order about the child's

disabilities may help spur the school to act.

• The Order should require that the child receive IDEA

services while in a placement outside of the home.

Placement and Probation Conditions

• The conditions of probation must take into account the

youth’s disability to be certain he receives SPED services.

• Ensure the child can realistically comply with probation

conditions and can still participate in services to address his disability.

• In determining out of home placements, advocate for those

that take into account and address disability related needs.

Ensure Enrollment

Immediate Enrollment is goal. Assist with transfer of education records: IEP’s, 504 plans, safety plans, etc. Attend intake, safety or placement meeting. Provide school with CW contact and other team contacts (DD, MH, Juv Dept, etc.).

Post-Disposition

• Follow-up to make sure child is receiving appropriate

educational services under IDEA after disposition.

• Could help child do be successful on probation
• Could help with success in placements and other

programs

• Could help with reentry

Where to start

Interview w/ parent, child, extended family Records request and review Enrollment Assistance Communicate with School Request evaluation of suspected disability Monitor grades/academic progress

School Records

• The defender should immediately request

the client’s school records.

• Usually the defender may do this by providing a release form

signed by both the student and parent to the child’s school and/or a copy of the Order appointing the defender. Under ORS , defenders are entitled to the records.

School Records

• The defender should make sure to receive all

school records:

• any evaluations
• IEPs and progress reports
• attendance records
• report cards
• disciplinary file from other schools

the child attended (e.g., records from elementary school, records from a school the client may have transferred from, etc.).

IDEA: IEP Disputes

Dispute Resolution: consider working up chain of command from local to state… Complaint Investigation; Due Process Hearing; Mediation Settlement (formal and informal)

School Advocacy Wrap Up

Parent can bring knowledgeable individuals to team meetings. Build community-based advocacy team to support child and family. Maintain communication with school officials, including periodic progress reports and participation in school meetings.

ADVOCACY AT SUSPENSION, EXPULSION AND OTHER SCHOOL DISCIPLINARY PROCEEDINGS

Discipline of Students with Disabilities

Manifestation Determination Review (MDR)

• Two questions:

1) Was the behavior caused by or directly and substantially related to the child’s disability; or 2) Was the behavior the direct result of the local educational agency’s failure to implement the child’s IEP?

MDR

• If the questions are answered affirmatively, the behavior is a

manifestation of the students disability.

• If behavior is a manifestation of the disability:
• The school cannot change the student’s placement.
• The school must have an IEP meeting to complete a functional

behavioral assessment (FBA) or develop a behavior intervention plan (BIP).

• If a child already has a BIP, the IEP team

must review and modify the BIP to address new behavior.

• If behavior is not a manifestation of the

disability, a student may be disciplined like a regular student.

Discipline of Students with Disabilities

• Services During Removal
• When a student is suspended for activity not a manifestation of his
• r her disability, the school must continue to provide special

education services

• These may be provided in an interim alternative education setting
• Weapons, Drugs, and Serious Bodily Injuries
• A child may be removed for up to 45 days to an alternative education

setting, whether behavior is a manifestation of a disability or not for the following reasons:

• The child carries or possesses a weapon
• The child knowingly possesses or uses drugs, or sells or solicits the

sale of illegal drugs

• The child inflicts serious bodily injury on another person

Discipline of Students with Disabilities

• Discipline for Students Not Yet Found Eligible
• If the school acknowledges the student may have a disability, the child is

entitled to an MDR process

• A school will be “deemed to have knowledge” if:
• The parent expressed concern in writing to a teacher or administrative

personnel;

• If the parent requested in writing or orally that the child be evaluated;
• r
• If the teacher or other school personnel express concerns to the

director of special education or other supervisory personnel.

• A school is not deemed to have knowledge if:
• The child has a disability but the parent has not given consent.
• If the child has been evaluated and determined not to have a disability.

School Discipline

• Students with Section 504 accommodations are

entitled to an MDR process if disciplined.

• Administrative hearing remedies must be

exhausted first before filing an action in federal court for a Section 504 violation.

ORGANIZATIONS AND WEB LINKS

IDEA Website, Office of Special Education and Rehabilitation Services, U.S. Department of Education: http://idea.ed.gov/explore/home Council for Exceptional Children: http://www.cec.sped.org Council of Parent Attorneys and Advocates: http://www.copaa.org Understand Special Education: http://www.understandingspecialeducation.com Wrightslaw: http://wrightslaw.com/

Presenter

Nicole McGrath Law Office of Nicole K. McGrath, PLLC 1455 NW Leary Way, Ste 400 Seattle, WA 98107 phone: 206.489.5214, fax: 866.802.2566 email: nicole@mcgrath.legal