Special Education Law Jessica L. Dawso Scott Scriven LLP Agenda - - PowerPoint PPT Presentation

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Special Education Law

Jessica L. Dawso Scott Scriven LLP September 11, 2018

Agenda

 New ODE Forms  Prior Written Notices  IDEA General Best Practices  Screening vs. Evaluation  You Be the Judge! Recent Cases & Due Process Complaints

New ODE Forms

New Special Education Forms

• Required for use in 2018-2019 school year.
• Modules available on ODE website that walk

through the changes to the forms.

• IEP will hide boxes that are not applicable based
• n the child’s age.
• Some re-ordering of the sections of the IEP.
• References to the Ohio Operating Standards

embedded in forms.

Sch chool A Age Evaluation Pl Planning F Form

• Planning form now

acknowledges more than

• ne disability may be

suspected.

• Boxes are clarified—three
• ptions for data.
• Person responsible for

assessment and report identified.

Presch chool Pl Planning Fo Form

• Chart is easier to read

without the boxes and dots from prior version.

• Added hyper-links to

the administrative code for various pieces.

ETR Team Summary

Summary of Observations Per ODE:

• Summaries from teachers and related service providers

are required for all initial evaluations and reevaluations.

• Observation data should quantify the student’s

performance in terms of:

• Frequency;
• Duration;
• Intensity; and
• Quality.

ETR Team Summary

Description of Educational Needs per ODE:

• Should be specific enough to allow accurate supports

and services to be identified.

• Ties directly to the implications for instruction.
• Be careful not to predetermine services.

ETR Team Summary

Implications for Instruction and Progress Monitoring per ODE:

• Summary of the proposed supports, services and

specially designed instruction.

• Summary must describe how the team will progress

monitor in relation to the student’s goals and objectives.

• Should NOT be a list of accommodations and

modifications.

IEP Updated Sections

• Amendments: See box at the bottom of Page 1
• Profile: Inclusion of RIMP data
• ESY: Now section 4
• Post Secondary Transition
• Measurable Annual Goals
• Specially Designed Instruction
• LRE
• Transportation & Testing

IEP F EP Form

• New section for

participants to initial IEP amendments.

IEP F EP Form

• Profile requires “data

collected through a RIMP, if applicable”.

IEP F EP Form

• ESY is now Section 4.
• Team may need to skip

this step and consider goals, objectives, and specially designed instruction, then come back to this.

Postsecondary Transition

• Section 5 of the IEP:
• Reorganized significantly.
• Must include evidence that each goal is based on age

appropriate transition assessments.

• Must have at least one transition service for each

postsecondary goal.

• Must indicate the type of evidence that will be used to

illustrate that the transition service has been completed.

Postsecondary Transition Progress Report

• New optional form.
• ODE: Transition progress (this form or another) must be

completed and shared with parent as frequently as the IEP Progress Report.

• Details the transition services and activities found in Section 5 of

the IEP.

• Summarize the outcome of the transition service/activity.
• Indicate the progress toward the completion of the transition

services and activities.

• Secondary Transition Modules- available in LMS!

• ODE: If the box is

checked, there should be a written record to support this data collection. Method should align to data source in progress report.

OLD FORM – METHOD(S) NEW FORM – METHOD(S)

IEP F For

• rm

IEP F EP Form

• New section on preschool

LRE.

• Terms not defined in rule

yet.

Testing: A Alte ternate te Asse Assessment

• Is the child participating in the

Alternate Assessment for Students with Significant Cognitive Disabilities (AASCD)?

• If yes, complete Ohio

AASCD Participation Criteria.

• Parent, district

representative, intervention specialist and general education teacher must sign off on the review of AASCD criteria.

Testing: Exemptions

• New Section 13 regarding testing

exemptions.

• One section on Third Grade Reading

Guarantee.

• Another section on Graduation Tests.

New Op w Optional al Progress Report rt F Form

• rm

Agenda

 New ODE Forms  Prior Written Notices  IDEA General Best Practices  Screening vs. Evaluation  You Be the Judge! Recent Cases and Due Process Decisions



Prior Written Notices

Prior Written Notice - Law

• Districts generally required to provide parents

with notice when a district proposes or refuses to “initiate or change the identification, evaluation or educational placement of the child or the provision of FAPE to the child.”

Prior Written Notice - Basics

• Mandatory Form PR-01.
• No statutory requirement regarding the period of

time in which PWN must be provided.

• Must be enough time to allow for parent input and

participation and to challenge the decision.

What does “prior” in Prior Written Notice mean?

• The “prior” in Prior Written Notice is referring to the
• utcome of the meeting which will result in the

implementation of the IEP.

• The PR-01 must be provided after the IEP meeting has

concluded, but before the implementation of the new IEP.

• Must give a copy of the IEP to parents before effective

date.

• Cleaned up or sloppy copy?

Prior Written Notice - Content

• Description of the action proposed
• r refused by the district;
• Explanation of why the 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 have

protection under the procedural safeguards and where to get a copy;

• Sources for parents to contact to
• btain assistance in

understanding IDEA;

• A description of other options the

IEP Team considered the reasons why those options were rejected.

• A description of other relevant

factors.

PR PR-01 P 1 Purpo pose

• Opportunity to thoughtfully communicate a decision to the parent

and perhaps, persuade them regarding your position.

• Opportunity to create a record of what occurred before, during or

after a meeting.

• Evidence used in response to a complaint or in a due process

proceeding explaining what the team/district decided, when and why.

• Opportunity to demonstrate to a lawyer/advocate that the IEP team

made an informed, data-based decision after fully considering the parent’s input.

Amending a PWN

• Parents have the right to request to amend

education records that are inaccurate, misleading,

• r invade the student’s privacy rights.
• Usual response: Print out email, letter and include

in student’s special education file.

PR PR-01 01 T Tips

• Tell the story.
• Who was there?
• What was decided?
• Why?
• What data was considered?
• Was Parent Notice Given? (Include a reference in Box 6).
• Document parent input and agreement.
• A parent of a child with a disability may elect to receive required

prior written notices via electronic communication.

• District should document such a request by a parent.

PR-01 – When to Provide (From ODE)

• Parent files due process

complaint and district has not provided parent PWN on topic of complaint

• Disciplinary change in

placement

• Revocation of consent
• Initial referral for suspected

disability

• Initial evaluation
• Eligibility determination
• IEP meeting (before

implementation of any new

• r amended IEP)
• Reevaluation (before and

after if change in category)

• Graduation/exit from

special education

Additional PWN Opportunities

• When parent requests IEE and district agrees to

fund or provide exception to criteria.

• When parent sends voluminous correspondence or

requests a meeting regarding issues that have already been addressed.

• When it becomes obvious communication needs to

be formal and official.

Change in Placement

• Triggers the prior written notice requirement.
• Even if parents and team agree, need PWN.
• If district proposes, but parent has not consented

(cannot change without consent).

• If parent requests a change and district refuses (or

does nothing in response to request).

Prior Written Notice Helpful Hints

• Don’t put “because it is required for triennial

review” in a PWN proposing an evaluation.

• Instead: “An evaluation is necessary to determine

the child’s continued eligibility as a child with a disability and/or the district has determined that the educational or related services needs of the child warrant a reevaluation.”

Prior Written Notice Helpful Hints

• Don’t indicate the IEP team made a decision it did not
• make. (State that the District proposes/refuses; indicate

that the team did not consider other options because it is not a team decision).

• Don’t try to write a complicated PR-01 during a meeting

and hand it to the parents as the meeting concludes.

• Remember to consult with colleagues regarding the

necessity or the content of a PR-01 in difficult situations.

Prior Written Notice Helpful Hints

• Don’t use a template and not customize it to the

situation.

• Sample PWN – Annual Review
• Sample PWN – Initial IEP

PWN Example – Sufficient Notice?

PWN Example – Sufficient Notice?

Cincinnati CP No. 0006-2016

• ODE regarding the first PWN: This prior written

notice does not provide sufficient content, as required by the regulation, and for that reason, it is not in compliance with this regulation.

• ODE regarding the second PWN: This prior

written notice is in compliance with this regulation.

PWN Can Help Establish Facts

Sylvania CP No. 0059-2018

• Parent alleged district would only provide mental health services if

Student agreed to attend placement at a separate facility.

• Student’s IEP did not include mental health services at his local

elementary school.

• District offered to provide mental health services in a meeting;

parent, on recommendation of advocate, declined due to past issues with the provider and conflict with outside therapy.

• PWN after the meeting noted the offer of additional services and

that parent declined.

• ODE: No violation.

Keep it Objective and Factual

• “The parent raised her voice, told the special

education director she was a horrible person and left the meeting.”

• Not: “The parent shouted and stormed out of the

room.”

When Refusing to Increase Services

• “The data supports the current type and frequency
• f intervention and the student is making
• progress. Therefore, the IEP team refused to

increase the student’s speech minutes.”

When No Decision Was Made

• “The IEP team did not change the draft IEP and

kept the accommodations as proposed.”

 New ODE Forms  Prior Written Notices  IDEA General Best Practices  Screening vs. Evaluation  You Be the Judge! Recent Cases & Due Process Complaints

Agenda

 

IDEA – General Best Practices

IEP TEAM MEMBERS

Who should be at the IEP meeting?

• Mandatory: Parents, one regular ed. teacher, one

special ed. teacher, the District representative, an individual who can interpret evaluation results (can be one of the above individuals), and the child (when appropriate).

• Optional: Other individuals who have knowledge
• r special expertise regarding the student (at

District’s or Parents’ discretion).

Related Service Providers

The parents or the school district may invite a related service provider to be a member of the IEP team. The IEP team must ensure that any related service provider who will be providing service to a child is informed of the results of the IEP meeting and receives a copy of the IEP.

Regular Education Teacher

The role of the regular education teacher, at a minimum, is to:

• Provide information regarding the child's current

level of performance in the regular education environment;

• Provide information on the general education

standards, curriculum and expectations;

• Assist in determining appropriate positive behavioral

interventions and strategies;

• Assist in determining supplementary aids and

services; and

• Assist in determining program modifications and

support needed for school personnel.

Excusal of Required Team Members

• A member of the team is not required to attend, in whole or in part,

if the parent and district agree, in writing, that the attendance is not necessary because the member’s area of the curriculum or related services is not being modified or discussed in the meeting.

• A member may be excused , in whole or part, when the meeting

involves a modification to or discussion of the member’s area of the curriculum or related service, if the parent and district agree in writing and the member submits, in writing, to the parent and the IEP team, input into the development of the IEP prior to the meeting. O.A.C. 3301-51-07(I)(5).

Excusal Form

Lawyers at IEP Meetings

• OSEP (2016): A district may not condition

holding an IEP meeting on a parent’s attorney not participating or on the parent providing prior notice of its intent to invite the attorney.

• OH Rules of Professional Conduct (R 4.2): A

lawyer cannot communicate with a person who the lawyer knows to be represented by another attorney about the subject of the representation (except with consent from the other lawyer).

IEP Drafting Tips and Progress Monitoring

• How will the student’s progress be monitored?
• How will the student’s progress be documented?
• DO NOT USE AP/NP as indicators of

progress!

• Must report on the student’s progress toward

IEP goals and objectives.

• The IEP must contain a description of when

periodic reports of progress will be provided to the parent.

IEP Drafting Tips and Progress Monitoring

• Data collection is crucial to writing defensible

IEPs.

• Present levels must include baseline data.
• Goals and objectives must relate to each other and be

data-driven.

• Can progress be seen from IEP to IEP?
• Can progress be seen in the assessments?
• Can progress be seen in work samples?

Reconvene if No Progress

• “The IEP Team also may meet periodically

throughout the course of the school year, if circumstances warrant it. For example, if a child is not making expected progress toward his or her annual goals, the IEP Team must revise, as appropriate, the IEP to address the lack of progress.”

• Q&A on U. S. Supreme Court Case Decision

Endrew F. v. Douglas County School District Re-1 (December, 2017).

Peer-Reviewed Research

• The IEP must include a statement of the special

education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child.

• The statement does not need to specifically identify

specific programs by name; however, if one is chosen, it should be implemented according to the program.

Best Practices When Circulating Draft Documents

• Drafts are not required.
• Be very clear the document is a DRAFT.
• Cover email: “We welcome and expect your input on the

draft.”

• Avoid appearance of predetermination.
• Keep an open mind.
• Allow parents the opportunity to ask questions and share

their input.

• Keep a copy of the draft, as the changes document parent

participation.

Effecti ctive D Date o

• f IEPs

Ps - Example le

September 2018

9 10 11 12 13 14 15

Annual IEP Review Deadline IEP Meeting Awesome Attorney Presentation

Note on Confidentiality

• Special education documents often

contain sensitive information about students and their parents.

• Both IDEA and FERPA require that

this information remain confidential.

• Licensure consequences for violation
• f student confidentiality laws or using

confidential information in a non-professional way.

Extended School Year Services

An IEP team must determine, on an individual basis, whether ESY services are necessary to provide a free appropriate public education. A school district may not: Limit extended school year services to particular categories

• f disability.

Unilaterally limit the type, amount or duration of services. 34 C.F.R. 300.106.

Extended School Year Services

The Ohio Department of Education additionally requires that the school district consider:

• Whether ESY is necessary to prevent significant

regression of skills or knowledge retained by the child so as to seriously impede the child’s progress toward the child’s educational goals; and

• Whether ESY is necessary to avoid something

more than adequately recoupable regression. O.A.C. 3301-51-02(G)(1).

 New ODE Forms  Prior Written Notices  IDEA General Best Practices  Screening vs. Evaluation  You Be the Judge! Recent Cases & Due Process Complaints

Agenda

  

Screening vs. Evaluation

Screening vs. Evaluation

• Evaluation
• Requires parental consent
• Refers to procedures to determine whether the child

has a disability and the special education and related services the child needs. 34 CFR 300.15

• Screening
• Does not require parental consent
• Refers to a process that a teacher or specialist uses to

determine appropriate instructional strategies. 34 CFR 300.302

Screening vs. Evaluation

• A screening is not an evaluation under the IDEA,

which means:

• It does not trigger strict timelines;
• Require use of mandatory forms; or
• Require informed consent
• However, a “screening” is typically a relatively

simple and quick process that is used for groups

• f children and is not individualized.

Screening vs. Evaluation

• A screening includes basic tests administered to,
• r procedures used for, all students in a school,

grade or class.

• When a screening is selectively administered, it

may be an evaluation triggering required evaluation procedures.

• The district cannot use a screening process to

avoid or delay an evaluation if the district suspects a disability.

Survey Time!

Can the school district implement interventions (classroom, building, or RTI) after a parent referral for an IDEA evaluation?

Intervention Services

Classroom interventions Building interventions Intervention assistance teams (IAT)/Response to intervention (RTI) Referral to 504 or IDEA

 New ODE Forms  Prior Written Notices  IDEA General Best Practices  Screening vs. Evaluation  You Be the Judge! Recent Cases & Due Process Complaints

Agenda

   

Recent Cases & Due Process Complaints

Scenario #1 – You Be the Judge!

• Sam is a thirteen year old boy who suffers from general anxiety disorder,

separation anxiety disorder, social phobia, depressive disorder and

• ppositional defiant disorder.
• In the fall of 2011, his emotional needs began to manifest at school,

mostly through school absences and behaviors in class. For example, Sam had more than 103 absences between November 1, 2011 and March 29, 2012.

• The district put him on a 504 plan in February of 2012. In March, his

parent enrolled him in the district’s cyber school and the 504 plan was discontinued.

• The student made academic progress when he moved from a brick and

mortar school setting to the online school.

• The district initiated an evaluation and offered an IEP in December of

2012.

• The parents filed for due process in February of 2013 alleging child find

violations.

Did the district violate its child find

• bligation?
• Court: The school district’s delay in evaluating a student with severe

anxiety required the district to provide compensatory education.

• The court awarded compensatory services of:
• 663.5 academic hours;
• 136.5 psychological therapy hours;
• 39 hours of extracurricular program services; and
• 110 hours of vocational services.
• A.W. v. Middletown Area Sch. Dist., 68 IDELR 247 (M.D. Pa. 2016).

Scenario # 2

• Ollie is a 14 year old 9th grade student with severe health problems,

including orthopedic limitations and heart disease.

• He had heart surgery in December. He will need a series of other heart

surgeries and spinal surgeries. Standing and walking are difficult.

• He has participated in home instruction when he cannot come to school,

but reports liking school and being sad and feeling isolated that he cannot interact with his peers or teachers.

• His parents requested he attend school via a VGo robot when he is too

sick to come to school.

• The district raised concerns regarding safety of other students, privacy

and technological breakdowns and determined home instruction was appropriate.

Did the District need to offer a robot?

• The hearing officer found that the district was

predisposed to be against the inclusion or "even consideration" of the robot.

• The district did not explore the option by

contacting the company, other districts or exploring ways it could work.

• The hearing officer found the district denied

the student FAPE by not including the robot in his IEP.

• Warren Hills Regional High BOE (NJ 2017).

You Be the Judge! – Scenario # 3

• Robbie is in fourth grade. He has complained multiple times that

he is being bullied at school. The district has investigated these incidents and has been unable to substantiate any of the alleged incidents.

• Multiple students have, in fact, accused Robbie of bullying them

and Robbie has been disciplined for mistreating others.

• Heather is Robbie’s mom. She believes her son, not the school
• fficials.
• Heather has contacted school officials in “an abusive, threatening

and degrading manner” on multiple occasions. Heather asserted she was aggressively advocating for her child’s protection.

You Be the Judge! – Scenario # 3

• In November, Heather requests a Section 504 hearing.
• In December, Heather comes to the school and accuses the

principal of harassing her family.

• Then Robbie gets an in-class discipline. Heather calls and accuses

the principal of lying about the reason.

• Robbie is then disciplined for hitting another student with an
• versized pencil.
• The principal writes to Heather and requests all future

correspondence be in writing. Heather follows up with a phone call.

• Robbie is disciplined for threatening to shoot another student in

mid-January.

You Be the Judge! – Scenario # 3

• The Superintendent writes Heather and directs her not to come on

school property without his permission in January.

• Heather brings her son to school in March.
• The school files a criminal trespass complaint against her.
• Heather sues on her own behalf and on behalf of her son, alleging

disability discrimination and retaliation.

Did the District retaliate?

• No.
• Parent claimed that the district banned her from school grounds because she

advocated for her child under Section 504.

• The Court held that the district had a legitimate, nondiscriminatory reason for

banning the parent.

• The District had provided detailed records that the parent had been banned for

contentious and unpleasant interactions with school personnel; had provided a written ban; and had filed a criminal trespass complaint after the parent had violated the ban.

• H.C.; R.D.C. v. Fleming Cty. Bd. of Edn., 118 LRP 29496 (6th Cir. 2018).

You Be the Judge! – Scenario #4

• Marilee has a neurological disorder that necessitates private
• ccupational and physical therapy.
• She was evaluated in preschool as possibly developmentally

delayed and the district determined she was not a child with a disability.

• When she was in kindergarten she was placed on an RTI plan for

reading and a general education intervention team met regularly to address areas of concern, including fine/gross motor problems.

• She was observed throughout that year and placed on 504 plan

after the parents provided various medical records to the district.

• Marilee repeated kindergarten (she was 4 when she started

initially) and was provided OT consultations on the 504 plan.

You Be the Judge! – Scenario #4

• At the end of her first grade year, Marilee began to fall behind

academically, and the district evaluated again. The district determined she was not eligible as a child with a disability. She had motor-skill deficits, but those skills were within or above normal range and did not impact her education.

• The parents requested services under IDEA three times between

the two evaluations. The district did not evaluate and did not respond with prior written notices.

• Her parents withdrew her and filed for due process (in TN).

Did the District deny FAPE when it failed to provide PWN?

• Court: For a court to award relief for a procedural violation of the

IDEA, the plaintiff must show the violation resulted in substantive harm to the student or the parents.

• Court: Plaintiffs are not entitled to relief because Marilee was not

substantively eligible for special education services.

• Court: The IDEA does not require schools to provide physical and
• ccupational therapy to all students who might “benefit from or

need” those services outside of the educational context; rather, the IDEA only requires schools to provide those services to students who require them in order to receive “the full benefit of special education instruction.”

• M.G. v. Williamson County Schools (C.A. 6 2018).

You Be the Judge! Scenario #5

• J.D. is a student with a hearing impairment and autism and has a

history of violent and destructive behaviors.

• School district and parents agreed to place the student in a

specialized residential school in PA in 2015.

• J.D.'s parents moved to Nicaragua “to pursue a lifelong

humanitarian calling to help individuals in disadvantaged countries learn survival and self-sufficiency through bee-keeping.”

• They signed a grandparent caretaker affidavit for the student.
• The District filed a declaratory judgment in juvenile court to

invalidate the grandparent affidavit and refused to pay for the private placement because neither the student nor parents resided in the district.

You Be the Judge! Scenario #5

• The parents filed for due process and filed a federal court action

seeking a temporary restraining order to have the District pay the tuition.

• They claimed the due process proceeding was too slow and the

student would be discharged before a decision was made.

Did they win?

• No.
• Court: Must exhaust administrative remedies.

The due process procedures exist to determine questions such as whether the District owed the student a FAPE; cannot go to court before those steps are taken.

Scenario # 6

• Suzy’s parents believe she is tested entirely too

much at school, so they keep her home during statewide testing.

• Billy ordinarily gets 30 minutes daily of Orton

Gillingham instruction. During testing week, he misses his assigned Orton period 3 times due to taking assessments.

• Does the district owe either student compensatory

education for special education missed during testing?

Does the district owe comp ed?

• Ruling: Districts do not need to provide make-up

instruction to students with disabilities who miss regularly scheduled special education services to participate in statewide or districtwide

• assessments. OSEP informed a rehabilitation

center administrator that IDEA-eligible students are generally not entitled to compensatory education for special education services missed due to testing.

• Letter to Kane, 118 LRP 17276 (OSEP 04/18/18).

Questions?

Have a great school year!

Thank you for your time and attention!