Whose Job Is It? The LEA's Role in Recommending Outside Placements - - PowerPoint PPT Presentation

Whose Job Is It? The LEA's Role in Recommending Outside Placements and Implementing IEPs

Tri State Area School Study Council

• Dr. Samuel Francis School Law and Special Education Workshop

Rachel K. Lozosky, Esq.

June 27, 2018

1

Disclaimer

These materials are intended as general information only, and not as legal advice. School personnel are advised to consult with legal counsel in reference to any specific situation with which they may be faced. Presentation of these materials does not establish an attorney-client relationship.

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This seminar will address:

• The LEA's role in recommending outside

placements

• The LEA's role in implementing IEPs

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• Child find obligations
• Disciplinary placements

This seminar will not address:

4

Q: What is a non-disciplinary outside placement? A: A more restrictive environment than the LEA, in which a student is placed to address his or her need for special education and related services

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• School for the blind
• School for children with autism
• Intermediate Unit School for students with

social, emotional and/or behavior issues

• Instruction in the home
• Instruction in a hospital or other institution
• Approved private school
• *Charter school

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Examples:

* A charter school is an LEA. However, the Pennsylvania Regulations also state the following:

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Charter Schools

22 Pa. Code § 711.2. Purposes and intent. (b) This chapter does not prevent a charter school or cyber charter school and a school district from entering into agreements regarding the provision of services and programs to comply with this chapter, whether or not the agreements involve payment for the services and programs by the charter school or the cyber charter school.

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• Query:

– How far should a school district go in providing services to charter school students?

• Recommendation:

– While districts should, of course, always act in the best interests of students, districts should also give careful thought to this question. Once a district voluntarily assumes the obligation of providing services to a student enrolled in another LEA, the district is responsible for monitoring implementation.

Charter Schools

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• Query: Is a Career and Technology

Center an "outside placement?"

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• A Hearing Officer will likely view it as an
• utside placement. Thus, the same

analysis discussed in this presentation will apply to:

– the LEA's recommendation of the CTC as an appropriate program – the LEA's obligation to ensure IEP implementation at the CTC – the LEA's liability for compensatory education related to all actions and inactions of the CTC

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The LEA's Role in Recommending Outside Placements

• The LEA is obligated to offer a program

that provides a FAPE.

13

The LEA's Role in Recommending Outside Placements

• The current FAPE standard:

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The LEA's Role in Recommending Outside Placements

• "The LEA must offer a program reasonably

calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. ex. re. Joseph

• F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.
• Ct. 988, 197 L. Ed. 335 (2017)

15

The LEA's Role in Recommending Outside Placements

• Review: Who makes the placement

decision?

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The LEA's Role in Recommending Outside Placements

34 C.F.R. Section 300.116

• “In determining the educational placement
• f a child with a disability, including a

preschool child with a disability, each public agency must ensure that the placement decision is made:

17

The LEA's Role in Recommending Outside Placements

• by a group of persons, including the

parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement

• ptions; and

18

The LEA's Role in Recommending Outside Placements

• in conformity with the LRE provisions of

this subpart, including §§300.114 through 300.118"

19

Review: LRE Requirements

• Review: The IDEA and Chapter 14

Regulations require that a student be educated in the least restrictive environment (LRE), and establish the home school (LEA) as the starting point.

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• "The LEA must ensure that, unless the IEP
• f a child with a disability requires some
• ther arrangement, the child is educated in

the school that he or she would attend if nondisabled, and that a child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum." 34 C.F.R. Section 300.116

Review: LRE Requirements

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Review: LRE Requirements

• Potential harmful effects:

– lack of IEP implementation – lack of or inappropriate social exposure, including bullying – other factors in the outside placement's environment that could be detrimental to the student's unique needs

22

Review: LRE Requirements

• "The LEA must ensure that, in selecting

the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs." 34 C.F.R. Section 300.116

23

34 C.F.R. Section 300.114 "(2) Each public agency must ensure that— (i) To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and

Review: LRE Requirements

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(ii) Special classes, separate schooling, or

• ther removal of children with disabilities

from the regular educational environment

• ccurs only if the nature or severity of the

disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."

Review: LRE Requirements

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34 C.F.R. Section 300.115 “a) Each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.

Review: LRE Requirements

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(b) The continuum required in paragraph (a) of this section must— (1) Include the alternative placements listed in the definition of special education under §300.39 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions); and

Review: LRE Requirements

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(2) Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement."

Review: LRE Requirements

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• "In providing or arranging for the provision of

nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in §300.107, each public agency must ensure that each child with a disability participates with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child." 34 C.F.R. Section 300.117

Review: LRE Requirements

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• " Nonacademic and extracurricular services

and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the public agency and assistance in making outside employment available." 34 C.F.R. Section 300.107

Review: LRE Requirements

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The LEA's Role in Recommending Outside Placements

• Basic required elements in recommending

a placement:

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The LEA's Role in Recommending Outside Placements

• The LEA must ensure that the child’s

placement:

– Is determined at least annually – Is based on the child’s IEP; and – Is a close as possible to the child’s home 34 C.F.R. Section 300.115

32

The LEA's Role in Recommending Outside Placements

• If the appropriateness of a placement is

challenged in a due process complaint, a Hearing Officer will look at the information in the IEP:

– is it accurate? – is it complete? – does it support the recommended placement?

33

The LEA's Role in Recommending Outside Placements

• "Consistent with §300.501(c), each public

agency must ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child." 34 C.F.R. §300.327

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The LEA's Role in Recommending Outside Placements

34 C.F.R. §300.327 (c): “Parent involvement in placement decisions. (1) Each public agency must ensure that a parent of each child with a disability is a member of any group that makes decisions

• n the educational placement of the parent's

child.”

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The LEA's Role in Recommending Outside Placements

• (2) In implementing the requirements of

paragraph (c)(1) of this section, the public agency must use procedures consistent with the procedures described in §300.322(a) through (b)(1).” (These provisions require that proper notice be given to parents.)

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The LEA's Role in Recommending Outside Placements

• (3) If neither parent can participate in a

meeting in which a decision is to be made relating to the educational placement of their child, the public agency must use

• ther methods to ensure their

participation, including individual or conference telephone calls, or video conferencing.

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The LEA's Role in Recommending Outside Placements

• (4) A placement decision may be made by

a group without the involvement of a parent, if the public agency is unable to

• btain the parent's participation in the
• decision. In this case, the public agency

must have a record of its attempt to ensure their involvement."

38

The LEA's Role in Recommending Outside Placements

• Query:

– What weight should be afforded to parent input? – What happens when parent input does not align with LEA observations and data?

39

The LEA's Role in Recommending Outside Placements

• When considering parent input, delve further

into general statements and conclusions (ex., "Rachel is susceptible to bullying due to her disability."):

– Ask parents for anecdotes, including from the school setting, and then include in IEP. – Gather and include in IEP all available info from the school setting, as provided by staff. – In considering all of the above, make a determination regarding the student's needs in the school setting, and how this relates to the determination of an appropriate placement.

40

The LEA's Role in Recommending Outside Placements

• Ex: Parents tell ABC School District

"Rachel is susceptible to bullying because she has Tourette's Syndrome."

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The LEA's Role in Recommending Outside Placements

• ABC asks parents: "Has Rachel been

bullied in school in the past?“

• Parents' answer :"Yes."

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The LEA's Role in Recommending Outside Placements

• ABC should note information provided by

parents in the section of the IEP entitled "Parental concerns for enhancing the education of the student.”

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The LEA's Role in Recommending Outside Placements

• ABC should ask for details, and

investigate how it was handled, if alleged to have occurred at ABC.

44

The LEA's Role in Recommending Outside Placements

• The principal of ABC high school confirms

that Rachel was bullied during the school day, at lunch and recess, for a period of two months last year. The bullying policy was followed and no further incidents

• ccurred. The bullying occurred after

Rachel directed several non-threatening but bizarre statements toward her peers, which was believed by staff to have been a manifestation of Tourette’s Syndrome.

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The LEA's Role in Recommending Outside Placements

• ABC should note in "How the student's

disability affects involvement and progress in the general education curriculum" the fact that Rachel has experienced bullying in school during lunch and recess as a result of the following specific manifestations of her disability, and the fact that this was addressed by ABC.

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The LEA's Role in Recommending Outside Placements

• ABC should note in "Academic, developmental, and

functional needs related to student's disability" the fact that Rachel needs additional monitoring, particularly in less structured settings with peers.

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The LEA's Role in Recommending Outside Placements

• IEP should also direct the outside placement to

report any bullying incidents to ABC and Parents immediately.

48

The LEA's Role in Recommending Outside Placements

• Needs, goals and SDI will also need to address the

manifestations of the disability that led to bullying.

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The LEA's Role in Recommending Outside Placements

• ABC should investigate, before

recommending an outside placement, the placement’s policies both "on paper" and as currently being implemented (or planned for implementation for the student) to address bullying.

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The LEA's Role in Recommending Outside Placements

• Before recommending Outside Placement

A, ABC should investigate and determine that:

– there have not been a sufficient number of bullying incidents reported at Outside Placement A in recent (past five?) years to lead to a conclusion that it is a significant problem

51

The LEA's Role in Recommending Outside Placements

• Outside Placement A has appropriate

policies as written, and as implemented, to address bullying incidents that do occur

• Outside Placement A has mechanisms in

place to address all of Rachel's needs arising from her disability, including those behaviors which historically led to bullying.

52

The LEA's Role in Recommending Outside Placements

• Why do I recommend investigation of the
• utside placement?

53

The LEA's Role in Recommending Outside Placements

• For the same reason that LEAs must fully

consider all parent input, and all other relevant factors in a placement decision:

• For purposes of liability, the LEA will be

held to a "knew or should have known" standard with respect to recommending the appropriateness of a placement.

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The LEA's Role in Recommending Outside Placements

• "Compensatory education is available if

the LEA knows or should know that the program is not appropriate or that the student is receiving only trivial educational benefit, and the LEA fails to remedy the problem." M.C. v. Central Regional S.D., 831 F.3d 389 (3rd. Cir. 1996) [emphasis supplied]

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The LEA's Role in Recommending Outside Placements

• The fact that parents agree to an outside

placement will not necessarily relieve the LEA of liability when parents file a due process action claiming the placement was inappropriate and seeking compensatory education, if:

56

The LEA's Role in Recommending Outside Placements

• This is liability imputed directly to the LEA

for its direct role in recommending the

• placement. Liability will attach if the LEA

knew or should have known that the placement was inappropriate, and nonetheless recommended it.

57

The LEA's Role in Recommending Outside Placements

– The LEA knew, or should have discovered through reasonable investigation, that the placement was inappropriate for any reason.

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The LEA's Role in Recommending Outside Placements

– This includes not only the programs and services being delivered/not being delivered, but also factors like a pervasive bullying problem and/or lack of appropriate student supervision by staff.

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The LEA's Role in Recommending Outside Placements

– These issues could result in liability in any placement situation, but are of even greater concern when the LEA and/or parents identified prior bullying issues relative to the

• student. (The fact that prior bullying occurred
• nly outside the school setting could be a

helpful defense, but will not necessarily exonerate the LEA from liability.)

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The LEA's Role in Recommending Outside Placements

• Back to the hypothetical:

– Parents' answer as to whether bullying has

• ccurred in school: "No. Her classmates at

school seem pretty accepting, but her Tourette's Syndrome has caused her to blurt

• ut some unusual things at dancing school

and at summer horseback riding camp, and she has been verbally taunted in both of those places as a result."

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The LEA's Role in Recommending Outside Placements

• ABC should note in "Parental concerns for

enhancing the education of the student" the following:

– Parents reported that Rachel has been verbally taunted by peers during non-school sponsored activities.

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The LEA's Role in Recommending Outside Placements

• ABC should also note in "Academic,

developmental, and functional needs related to student's disability" the following:

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The LEA's Role in Recommending Outside Placements

• Although parents report that Rachel has

experienced bullying outside of the school setting as a result of her disability, this has not been

• bserved by ABC personnel or reported by anyone

else as occurring within the school setting. Nonetheless, it is recommend that Outside Placement A staff observe Rachel carefully, particularly in unstructured settings with peers, and report any potential bullying incidents to ABC and Parents immediately.

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The LEA's Role in Recommending Outside Placements

• ABC should also investigate and confirm

that:

– there have not been a sufficient number of bullying incidents reported at Outside Placement A in recent (past five?) years to lead to a conclusion that it is a significant problem – Outside Placement A has appropriate policies as written, and as implemented, to address bullying incidents that do occur

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The LEA's Role in Recommending Outside Placements

• Summary: Key points in drafting IEPs

in which an outside placement is recommended:

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The LEA's Role in Recommending Outside Placements

• Document all input provided by parents

and LEA staff.

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The LEA's Role in Recommending Outside Placements

• Dig more deeply into conclusory

statements from any member of the team indicating that the placement would or would not be appropriate for the student. ("What have you observed, and when/where did you observe it?")

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The LEA's Role in Recommending Outside Placements

• Perform due diligence to ascertain

whether the placement is generally safe and adheres to appropriate policies and procedures.

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The LEA's Role in Recommending Outside Placements

• Perform due diligence to ascertain

whether the placement is appropriate for this student, in terms of not only services and programming, but also the overall environment.

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The LEA's Role in Recommending Outside Placements

• If a parent concern has not manifested itself

in the school setting, it probably does not need to be a reason to recommend/refrain from recommending a placement (although disagreements among the team on this issue could lead to a due process filing to determine the appropriate placement before the student is placed, or allegations after placement that parents’ input was not sufficiently considered.)

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The LEA's Role in Recommending Outside Placements

• Nonetheless, the LEA will be best

positioned to defend itself if it investigates the way in which the issue would be addressed at the outside placement and notes the issue at least in "Parental concerns for enhancing the education of the student," and possibly also under “Needs,” so as to make the outside placement aware.

• Pennsylvania Department of Education

Basic Education Circular, Instruction in the Home (Revised June 30, 2005):

– "Instruction conducted in the home is included in the definition of special education located in the federal regulations (34 CFR §300.39(a)(i)) and is recognized as a placement option on the continuum of alternative placements for students with disabilities (34 CFR §300.115).

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The LEA's Role in Recommending Outside Placements

The LEA's Role in Recommending Outside Placements

• Instruction in the Home vs. Homebound

Instruction

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– "The use of instruction conducted in the home is restricted to students whose needs require full-time special education services and programs outside the school setting for the entire day. Ordinarily, these will be students who, because of a severe medical condition

• r mobility impairment, are unable to leave

home to attend school.

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The LEA's Role in Recommending Outside Placements

– "Although a student placed by his or her Individualized Education Program (IEP) team

• n instruction conducted in the home does not

receive his or her program in the school setting, he or she remains entitled to a free appropriate public education equal to his or her non-disabled peers, unless this amount of instruction would jeopardize the child's health

• r welfare.

75

The LEA's Role in Recommending Outside Placements

– "In such cases, the IEP team can agree on fewer hours of instruction so long as the student still receives a free appropriate public

• education. [emphasis supplied]

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The LEA's Role in Recommending Outside Placements

– "In all circumstances involving the placement

• f a student on instruction conducted in the

home, the districts and charter schools must electronically report students with disabilities to the Department within five 5 days of the

• placement. Districts and Charter schools must

use the web-based reporting system.

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The LEA's Role in Recommending Outside Placements

– "Instruction conducted in the home is not an appropriate option in other situations [i.e., when child could otherwise leave home], such as when a district or charter school is experiencing difficulty in arranging the program or placement that a student requires. In such cases, the district

• r charter school should continue to serve the

student in accordance with his or her IEP while taking steps to promptly arrange for the services that the student requires. These steps may include seeking assistance from the Department or from other child-serving agencies involved with the student. [emphasis supplied]

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The LEA's Role in Recommending Outside Placements

– "Although instruction conducted in the home is not ordinarily permitted when the student has no condition preventing him or her from leaving the home, there are occasional, exceptional cases in which the parents and the district or charter school agree to instruction conducted in the home as a short-term option. In these cases, the district or charter school must report not less than weekly to the Department utilizing the web- based reporting system. The district or charter school are also responsible for informing the Department when the short-term placement has concluded." [emphasis supplied]

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The LEA's Role in Recommending Outside Placements

• Example: Due to a severe medical

condition, Rachel's IEP says she needs to be accompanied at all times by a specialized nurse in order to be educated at School District D, which has been determined to be the LRE. Rachel's nurse dies unexpectedly, and School District D is having a difficult time securing a replacement.

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The LEA's Role in Recommending Outside Placements

• Rachel's condition does not truly prevent

her from leaving the home, provided that she has the needed nursing care to support her.

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The LEA's Role in Recommending Outside Placements

• NOREP must reflect other options

considered and reasons for rejection.

• Therefore, School District D should

contact other placements which may have specialized nurses on staff, inquire about availability to educate student on short term basis, and offer same to Parents.

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The LEA's Role in Recommending Outside Placements

• Back to the BEC:
• “'Instruction conducted in the home,' which is listed

in the continuum of special education alternative placements in federal regulations, should not be confused with 'homebound instruction,' which describes the instruction a district or charter school may provide when a student has been excused from compulsory attendance under 22 Pa. Code §11.25 due to temporary mental or physical illness or

• ther urgent reasons.“ [emphasis supplied]

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The LEA's Role in Recommending Outside Placements

• Key Elements of School District D's

Obligations:

– Work diligently to arrange nursing services in the LRE. – Communicate and document efforts. – If not successful, obtain parental consent through a NOREP for short term instruction in home.

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The LEA's Role in Recommending Outside Placements

• Placing a special education student on

homebound because he or she cannot

• therwise leave home while awaiting

arrangements to facilitate education in the LRE is not appropriate.

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The LEA's Role in Recommending Outside Placements

• Instruction in the home is a placement

designed to provide FAPE, with the same amount of instructional hours (or fewer, if agreed to by parents) as would be provided in the LRE. The IEP must be implemented, including any SDI that can be implemented at home, and progress monitoring on goals.

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The LEA's Role in Recommending Outside Placements

22 Pa Code Section 11.25

• Homebound instruction:

“§ 11.25. Temporary excusals due to illness or other urgent reasons. (a) A principal or teacher may, upon receipt of satisfactory evidence of mental, physical or other urgent reasons, excuse a student for nonattendance during a temporary period, but the term ‘‘urgent reasons’’ shall be strictly construed and does not permit irregular

• attendance. A school district shall adopt rules and

procedures governing temporary excusals that may be granted by principals and teachers under this section. Temporary excusals may not exceed 3 months.

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The LEA's Role in Recommending Outside Placements

• “(b) A school district, area vocational technical school,

charter or independent school may provide students temporarily excused under this section with homebound instruction for a period not to exceed 3

• months. A school district, area vocational technical

school, charter or independent school may request approval from the Department to extend the provision

• f homebound instruction, which shall be reevaluated

every 3 months. When a student receives homebound instruction, the student may be counted for attendance purposes as if in school. A school district shall be reimbursed for homebound instruction provided to a student under section 2510.1 of the Public School Code of 1949 (24 P. S. § 25-2510.1).

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The LEA's Role in Recommending Outside Placements

• “(c) A school district shall adopt policies

that describe the instructional services that are available to students who have been excused under this section. The policies must include statements that define the responsibilities of both the district and the student with regard to these instructional services.

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The LEA's Role in Recommending Outside Placements

• The BEC:

– "Even though homebound instruction is not a special education placement option for students with disabilities, there are occasions when a student with a disability may receive homebound instruction due to a temporary excusal from compulsory attendance in the same manner as the student's non-disabled peers."

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The LEA's Role in Recommending Outside Placements

• Homebound instruction is not a change in
• placement. However:

– "If the temporary condition that precipitated the excusal from attendance for a student with disabilities results in a change in the student's need for specially designed instruction, districts and charter schools may need to reevaluate the

• student. Districts or charter schools may also

need to reconvene the student's IEP team to determine whether it is necessary to revise the IEP and change the student's placement to instruction conducted in the home.

91

The LEA's Role in Recommending Outside Placements

– "Moreover, the district or charter school may be responsible for providing compensatory education to the student for the interruption in services if the district or charter school did not provide a free appropriate public education."

92

The LEA's Role in Recommending Outside Placements

• LEA must ensure the individual providing

instruction in the home (or homebound instructions) is appropriately trained and

• monitored. S.Z. v. Pocono Mountain S.D.,

ODR# 2007/10-11-KE

– Do not neglect related services – Physical therapy requires a doctor's prescription. It is the parents' responsibility to obtain. This is not the case for speech therapy, occupational therapy, vision therapy. M.L. v. Lower Merion S.D., ODR #17597/15-16 KE

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The LEA's Role in Recommending Outside Placements

The LEA’s Role in IEP Meeting

• Attendance at IEP meetings:

– LEA holds the IEP meeting for students at all

• utside placements besides approved private

schools (APSs.) – When an APS hosts an IEP meeting, it is strongly recommended that one or more LEA representatives participate for the entire IEP meeting, in person if possible.

94

– At a minimum, the LEA representative should have a copy of the entire IEP in front of him/her when participating in the IEP meeting hosted by the APS. – LEA must never allow an individual who did not participate in an IEP meeting to sign the IEP.

95

The LEA’s Role in IEP Meeting

– Except when an APS is hosting the IEP meeting, the LEA must send and retain copies

• f invitations sent to all members of the IEP

team, including all personnel from the outside placement.

96

The LEA’s Role in IEP Meeting

• Who must participate?

97

The LEA’s Role in IEP Meeting

• §300.321 IEP Team.

“(a) General. The public agency must ensure that the IEP Team for each child with a disability includes— (1) The parents of the child; (2) Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment); (3) Not less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child;

98

The LEA’s Role in IEP Meeting

(4) A representative of the public agency who— (i) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; (ii) Is knowledgeable about the general education curriculum; and (iii) Is knowledgeable about the availability of resources of the public agency.

99

The LEA’s Role in IEP Meeting

(5) An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in paragraphs (a)(2) through (a)(6) of this section;

100

The LEA’s Role in IEP Meeting

(6) At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

101

The LEA’s Role in IEP Meeting

(7) Whenever appropriate, the child with a disability.”

102

The LEA’s Role in IEP Meeting

• Thus, it may be possible for LEA

personnel to fill all or most of the required roles on the team. However, it is strongly recommended that at least the classroom teacher, as well as other key staff from the

• utside placement who work with the

student, also be included. At a minimum, their written input must be sought and included in the IEP.

103

The LEA’s Role in IEP Meeting

• LEA should attempt to schedule IEP

meeting when as many staff from the

• utside placement as possible can attend

(even if their attendance is not strictly required), and document reasons given by such personnel if they cannot attend.

104

The LEA’s Role in IEP Meeting

The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• Pennsylvania Department of Education

Basic Education Circular "Placement Options for Special Education" (reviewed October 2017)

105

The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• "If LEAs elect to utilize another public or

private agency, organization, or school to provide all or part of the special education program on their behalf, under Title 22 of the Pennsylvania School Code §§14.102 and 711.2, they remain responsible for the provision of FAPE consistent with IDEA and Pennsylvania special education regulations contained in Chapter 14 and Chapter 711. [emphasis supplied]

106

The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• "The special education programs or services

provided through arrangements with a public or private agency or organization must be implemented in accordance with the child’s IEP and consistent with the requirements of IDEA and Chapter 14 or Chapter 711. LEAs remain responsible for ensuring that the implementation of the special education programs or services that are provided by the private or public agency, organization, or school meets the requirements of IDEA and Chapter 14 or Chapter 711." [emphasis supplied]

107

The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• FAPE Standard:

– Implementation

108

The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• "Compensatory education is available if

the LEA knows or should know that the program is not appropriate or that the student is receiving only trivial educational benefit, and the LEA fails to remedy the problem." M.C. v. Central Regional S.D., 831 F.3d 389 (3rd. Cir. 1996) [emphasis supplied]

109

The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• Thus, the "known or should have known"

standard also applies to implementation.

110

The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• What information "should" a school district

know?

111

The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• Three key concepts:

112

The LEA's Role in Implementing an IEP for a Student in an Outside Placement

(1) Regardless of: (a) whether the LEA did enough to directly ensure implementation, and (b) what information it was reasonable for the District to know or find out, the District, as LEA, will be liable for any failure to implement on the part of the

• utside placement!

113

The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• (2) However, the LEA should still do

everything possible to:

(a) monitor in order to ensure implementation, and (b) act appropriately on all information that it knows.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• (3) By taking these steps, the LEA will best

posture itself to:

(a) mitigate damages at the administrative hearing (due process hearing) level; and (b) successfully claim against the outside placement in federal court.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• Query: How far must the LEA go in

proactively overseeing IEP implementation and progress on goals?

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• Outside placements vary in terms of whether

they provide, without a prior request from the LEA:

– quarterly progress monitoring on IEP goals – general progress reports (weekly? monthly? quarterly?) – attendance data – discipline data – reports regarding particular issues of concern, such as bullying

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• Outside placements are required to

provide this information if requested by the

• LEA. The extent to which they provide the

same proactively is often a function of the relationship between the LEA and the

• utside placement.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• Recommendations:

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• LEA should require a written statement

from the following staff at the outside placement, verifying that they have reviewed and are keeping a copy of the IEP:

– Each person who will implement the IEP OR – An administrator who can verify that each person who will implement has received a copy

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• LEA should have a means for cross

checking to ensure that all individuals responsible for implementing have been accounted for (i.e., list of classes, social skills groups with facilitators, etc.)

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• LEA should require weekly progress reports

from the outside placement regarding:

– attendance – progress monitoring on goals – items of note with respect to implementation of SDI, including any non-implementation and reasons for the same – general adaptation to the program (whether student appears engaged, any minor problems with peers, staff, etc.)

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• The LEA should check with parents, to

confirm they have received all necessary information from the outside placement.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• More serious problems should be brought

to the LEA's and parents’ attention as soon as they occur. The LEA should set clear expectations regarding the issues that must be reported immediately and the procedure for reporting.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• If particular issues of concern (ex.,

susceptibility to bullying) are noted in the IEP (any section even if only parent input), a manifestation of any of the above should be reported immediately to the LEA and parents.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• LEA should retain progress reports for at

least ______

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• LEA must follow up on information received

from outside placement, including:

– Follow truancy procedures – Communicate with parents and the outside placement about addressing any behavior issues (the student's, or others toward the student) and ensure that the placement is following its protocols for incidents such as bullying. Ensure that parents understand that the matter has been addressed.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

– Address with parents and the outside placement the possibility of revising the IEP (goals, SDI) prior to the annual review to reflect academic and other concerns. – If the concerns are significant, address with parents the possibility of changing the placement. – Document and retain records of all the above!

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• LEA should send an appropriate staff

member (lead support teacher, special education supervisor, liaison who is familiar with the IEP) to visit an outside placement shortly after a student has been placed and multiple times throughout the year.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• LEA staff member should observe,

document and report back to LEA and parents:

– the student's behavior, performance and interactions in each different setting (i.e., each class with a different teacher or peer group, social settings, moving through halls) – the supervision provided by staff – staff's implementation of the IEP

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• LEA staff member should also address

any observed issues of concern with the

• utside placement. If staff member does

not have authority to address directly, he/she should do so through other staff at LEA and/or the placement, and make superiors at both entities aware of significant issues. Clear expectations should be in place defining "significant issues."

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• District must train staff member in advance
• n all these protocols. Document!

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• Case law examples:

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• M.C. v. Central Regional S.D., 831 F.3d

389 (3rd. Cir. 1996)

– Student with severe intellectual disability was placed in specialized day school. – After five years, parents became concerned about progress and filed for due process seeking residential placement and compensatory education.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

– Since his second year in the placement, relative to his IEP goals, the student "made little consistent improvement and in some aspects has even regressed." Id. at 389 – The Court did not discuss whether District did

• r should have monitored quarterly progress,

visited the outside placement to observe student, or any other actions besides the annual review of progress in the context of annual IEP meetings.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• However, the following verbiage from the

Court's opinion is instructive, and has been quoted by a Hearing Officer in a case that our Firm handled involving an LEA's responsibilities relative to a student at an outside placement:

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• "Obviously the case against the school district will be

stronger if the district actually knew of the educational deficiency or the parents had complained. But a child's entitlement to special education should not depend upon the vigilance of the parents (who may not be sufficiently sophisticated to comprehend the problem) nor be abridged because the district's behavior did not rise to the level of slothfulness or bad

• faith. Rather, it is the responsibility of the child's

teachers, therapists, and administrators—and of the multi-disciplinary team that annually evaluates the student's progress—to ascertain the child's educational needs, respond to deficiencies, and place him or her accordingly.“ Id. at 397 [emphasis supplied]

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• We believe this applies to an LEA's

responsibility in ensuring appropriate implementation as well as placement.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

• M.F. v. Green Woods Charter School,

ODR No. 15777-14-15 KE (April 2015):

– After learning of problems in the outside placement, an LEA has a reasonable time to attempt to address the same. But the LEA (in this case a charter school) must continue to follow-up with the outside placement to determine if these efforts are succeeding even if LEA has received no reports, positive or negative, from the outside placement.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

– Charter school student diagnosed with autism was placed in an approved private school – Parents alerted the charter school in late November that they believed APS was not appropriate placement

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

– Hearing Officer determined that late November through February 1 was a reasonable time for charter school to try to address issues at APS.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

– No record of correspondence existed between charter school and parents from late November through end of May. Meanwhile student's behavior continued to escalate and academic achievement declined as well.

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The LEA's Role in Implementing an IEP for a Student in an Outside Placement

– Hearing Officer rejected charter school's argument that its inaction was due to no complaints from parents. Again, an LEA's

• bligation to deliver FAPE is not contingent

upon parental vigilance.

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Deliberate Indifference

• The discussion thus far has focused on

delivery of FAPE and thus avoidance of liability for compensatory education.

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Deliberate Indifference

• An LEA can also be liable for monetary

damages in an action in federal court if it is determined that the LEA acted with deliberate indifference.

145

Deliberate Indifference

• At an absolute minimum, try to avoid

even the mere allegation of deliberate indifference, in recommending a placement and ensuring implementation.

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Deliberate Indifference

• The deliberate indifference standard was

adopted by the Third Circuit in S.H. ex rel. Durrel v. Lower Merion School District, 729 F.3d 248 (3d. Cir. 2013). The Court held that, where compensory damages are sought under §504 of the Rehabilitation Act, a claimant must establish evidence that shows both:

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• (1) knowledge that a federally protected

right is substantially likely to be violated...and (2) failure to act despite that knowledge." Id. at 265. "Deliberate indifference must be a deliberate choice, rather than negligence or bureaucratic inaction." Id. at 263.

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Deliberate Indifference

Deliberate Indifference

• In Gesber v. Lago Vista Independent

School District, 524 U.S. 274,290 (1998), the Supreme Court characterized deliberate indifference as "an official decision by the recipient [who received knowledge that a federally protected right is substantially likely to be violated] not to remedy the situation."

149

Deliberate Indifference

• In order to establish deliberate

indifference, the parents must first demonstrate actual knowledge of the alleged violations at issue; allegations that the District should have known do not satisfy this requirement. Id. at fn. 26. (emphasis supplied)

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Deliberate Indifference

• When considering whether an LEA

possessed sufficient knowledge, "we must consider only the information known to responsible officials at the time they are charged with failing to act." Harden v. Rosie, 99 A.3d 950, 963 (3rd Cir. 2014)(emphasis supplied). A "hindsight perspective" in light of what ultimately

• ccurred is insufficient to charge the District

with sufficient notice.

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Deliberate Indifference

• If actual notice is established, the inquiry

then considers the reasonableness of the response. This is a heavily fact-driven analysis that considers the facts known to the LEA at the time of the response.

152

Deliberate Indifference

• When the adequacy of an educational

plan, including placement in a program, is at issue, the courts place significant weight

• n the parents' failure to object, or

affirmative consent, to the plan. A.G. v. Lower Merion School Dist., 542 Fed. Appx. 194 (3d. Cir. 2013), K.K. ex rel. L.K. v. Pittsburgh Public Schools, 590 Fed.Appx. 148 (3d. Cir. 2014).

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• Moreover, the failure to include every

accommodation requested by a student's parents does not constitute a failure to act. T.F. at 601.

154

Deliberate Indifference

Deliberate Indifference

• For a finding of deliberate indifference to

be made, the nature of the conduct at issue must also meet a high standard of severity and pervasiveness. Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650, 119 S. Ct. 1661, 1675, 143 L. Ed. 2d 839 (1999).

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Deliberate Indifference

• Under Section 504,” plaintiffs “must prove

that they have been discriminated against—that they were ‘excluded from the ... benefit due to discrimination solely on the basis of the disability.’ ” M.S. ex rel. Shihadeh v. Marple Newtown Sch. Dist., 82 F. Supp. 3d 625, 634 (E.D. Pa.), aff'd in part, vacated in part, remanded sub nom., 635 F. App'x 69 (3d Cir. 2015)(internal citations omitted)(emphasis added).

156

Hypotheticals

• Will the LEA be found liable for:

–deliberate indifference? –denial of FAPE? –both?

157

Hypotheticals

• Scenario #1: LEA places a student with a

documented history of being victimized by peer bullying at a placement which the LEA knows has had three major bullying incidents reported and substantiated in the past five years. The student is verbally bullied for an entire semester, and her grades plummet, before the bullying is reported by the student.

158

Hypotheticals

• Scenario #2: LEA places a student with autism

who has severe sensory needs, and who also has a hearing impairment, at a school for the hearing impaired which has only rudimentary sensory input materials available. Unknown to the LEA, the school for the hearing impaired does not have on hand the materials and tools that have been proven successful for this student’s sensory needs when used at the LEA. The LEA did not inquire about such materials before recommending the placement, despite including the need for the same in the IEP.

159

Hypotheticals

• Scenario #3: LEA places a student with

generalized anxiety disorder and a specific learning disability in math computation at a school which addresses the latter issue. LEA fails to visit the school first, or conduct any investigation regarding its environment, other than to confirm that counseling and social skills groups will be provided to address the student's anxiety.

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Hypotheticals

• Numerous aspects of the environment

severely trigger the student's anxiety, including the manner in which the entire school changes classes at the same time in the halls and the unexpected, loud beeps that come across the intercom when students are paged to leave class. As a result, the student's academic performance plummets and he is unable to make progress on his IEP goals.

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Hypotheticals

• Scenario #4: LEA places a student with a

documented history of being victimized by peer bullying at a placement which does not have a history of severe or pervasive bullying issues, as verified by the LEA. The LEA never sends a staff member to observe the student and the manner in which she is being supervised at the placement. The student is verbally bullied for an entire semester, and her grades fall drastically, before the bullying is reported by the student.

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Questions?

Thank you!

Tri State Area School Study Council

• Dr. Samuel Francis School Law and Special Education

Workshop

Rachel K. Lozosky, Esq.

Peacock Keller & Ecker, LLP 70 East Beau St. Washington PA 15301 724.222.4520 | www.PeacockKeller.com

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