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  • 1. What to Do When… Lessons for the New Administrator ACSA 2014 Every Child Counts Symposium January 15-17, 2014 Presented by: Karen Gilyard, Partner Jennifer Fain, Partner Atkinson, Andelson, Loya, Ruud & Romo 12800 Center Court Drive, Suite 300 Cerritos, CA 90703 562-653-3200 • fax 562-653-3333 5075 Hopyard Road, Suite 210 Pleasanton, California 94588 Phone: (925) 227-9200  Fax (925) 227-9200 Cerritos • Fresno • Irvine • Pleasanton • Riverside • Sacrament o • San Diego
  • 2. Cerritos Office 12800 Center Court Drive Suite 300 Cerritos, California 90703 (562) 653-3200 (562) 653-3333 www.aalrr.com Phone Fax KAREN E. GILYARD Senior Partner kgilyard@aalrr.com Education Law Experience Karen Gilyard is a senior partner in the Cerritos office of Atkinson, Andelson, Loya, Ruud & Romo. She represents California school districts and community college districts in education law and labor relations. Ms. Gilyard provides interpretation and assessment of issues arising under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and Educational Employment Relations Act. She also handles and/or litigates special education due process hearing matters, Section 504 complaints, public sector unfair practice charges, and discrimination claims. Ms. Gilyard acts as district negotiator and specializes in employment discrimination, student discipline, special education, and condemnation actions. Education Ms. Gilyard received her Bachelor of Arts degree and Juris Doctor from the University of California, Los Angeles. Admission 1983, California and U.S. District Court, Central District of California; 1986, U.S. Court of Appeals, Ninth Circuit Memberships Los Angeles County and American Bar Associations; State Bar of California Publications and Speaking Engagements Ms. Gilyard has presented workshops and conferences for school administrators, teachers and staff, educational agencies, and school board members on such topics as collective bargaining, Section 504, student discipline, and special education. She has co-authored numerous summaries of recent statutes and court and administrative decisions relating to education and labor issues. She is a frequent contributor to the firm’s school law publications. Cerritos • Fresno • Irvine • Pleasanton • Riverside • Sacramento • San Diego
  • 3. Pleasanton Office 5075 Hopyard Road Suite 210 Pleasanton, California 94588 (925) 227-9200 (925) 227-9202 www.aalrr.com Phone Fax JENNIFER R. FAIN Partner jfain@aalrr.com Education Law | Special Education Section 504 | Student Issues Experience Jennifer Fain is a partner in the Pleasanton office of Atkinson, Andelson, Loya, Ruud & Romo. Her practice focuses on representing educational agencies in the areas of special education and anti-discrimination. Ms. Fain’s experience includes the successful representation of school agencies at every stage of the litigation process, including mediation sessions, administrative hearings, and federal court proceedings. In addition to handling matters in litigation, Ms. Fain also works with clients proactively to develop preventive practices to help avoid costly disputes, including reviewing current policies, practices, and procedures for systemic issues and legal compliance. To further assist clients in avoiding litigation, she offers in-service trainings for school personnel on a variety of issues relating to special education and disability law. She also has spoken at both state and national levels on special education legal issues. Prior to joining Atkinson, Andelson, Loya, Ruud & Romo, Ms. Fain was a partner at The Weatherly Law Firm where, for eleven years, she represented educational agencies across the country in all facets of special education and anti-discrimination law. Education Ms. Fain received her Bachelor of Arts degree magna cum laude from Emory University, and her Juris Doctor, cum laude from the University of Georgia. Admissions 2000, Georgia 2005, California Cerritos • Fresno • Irvine • Pleasanton • Riverside • Sacramento • San Diego
  • 4. What to Do When… Lessons for the New Administrator What to Do When… Lessons for the New Administrator 2014 ACSA Conference Presented By: Karen E. Gilyard, Partner Jennifer R. Fain, Partner Cerritos • Fresno • Irvine • Pleasanton • Riverside • Sacramento • San Diego The List 1. Know and apply the Holland least restrictive environment (LRE) standard 2. Make formal written offer of placement at IEP meeting and in IEP 3. Know how to conduct a manifestation determination review (MDR) 4. What to do when parents refuse consent to all or part of the IEP 5. What if parents revoke consent mid-year 6. Who is a “parent” for purposes of making special education decisions 7. All about independent educational evaluations (IEEs) 8. Dealing with potentially dangerous special education students 9. Requirements for a defensible transition plan 10. It’s is all in how you say it! 2 Number One: What to do When….Know and Apply the Holland LRE Test 3 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 5. What to Do When… Lessons for the New Administrator How to make placements in the LRE The LRE Requirement: To the maximum extent appropriate, students with disabilities should be educated with nondisabled students; and (20 U.S.C. §1412(a)(5) and 1413(a)(1); 34 C.F.R. § 300.114(a) and 104.34(a)) 4 LRE Requirement, continued Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs 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. (20 U.S.C. §1412(a)(5) and 1413(a)(1); 34 C.F.R. § 300.114(a) and 104.34(a)). 5 Continuum of Placements Instruction in regular classes Special classes Special schools Home instruction Instruction in hospitals and institutions 6 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 6. What to Do When… Lessons for the New Administrator The Holland Factors 1. Educational benefits of general education with supplemental aids/services v. more restrictive setting. 2. Nonacademic benefits of the general education classroom v. more restrictive setting. 3. Effect of the student’s presence on others in the general education classroom. 4. Cost of providing instruction/services for student in the general education classroom. Sacramento City Unified Sch. Dist. v. Holland, 14 F.3d 1398 (9th Cir. 1994)). 7 Document Your Consideration of LRE • If an IEP team determines that a student needs a more restrictive placement, it should thoroughly document its reasoning for that decision. • The documentation should identify all of the factors the IEP team considered and address the full range of the student's skills and needs. » Cobb County Sch. Dist. v. AV, 113 LRP 33979 (N.D. Ga. 08/20/13) 8 Number Two: What to do When…You Need to Make a Clear, Written Offer of Placement IEP Meetings 9 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 7. What to Do When… Lessons for the New Administrator Making a Formal Written Offer of Placement • The IDEA requires written prior notice to parents when an educational agency proposes, or refuses, to initiate or change the educational placement of a disabled child. • District must make a specific written offer of placement to comply with IDEA's prior notice requirement. • The placement offered should be described as specifically as possible. Union Sch. Dist. v. Smith, 15 F.3d 1519 (9th Cir. 1994) 10 Placement Defined • California Code of Regulations, title 5 defines placement as – a unique combination of facilities, personnel, location or equipment necessary to provide instructional services to a Student with exceptional needs. 11 Placement and Related Services • Must adequately define placement: – Facilities (District school, nonpublic school, RTC, etc.) – Personnel (credentials, qualifications – not names) – Type of program (SDC, RSP, etc.) – ESY (duration, etc.) • If year round, specify off-track services 12 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 8. What to Do When… Lessons for the New Administrator What is the purpose of the written offer of placement?  Creates a clear record that is intended to eliminate factual disputes about when placements were offered, what placements were offered, and what additional educational assistance was offered to supplement a placement, if any.  Provides parents with the opportunity to decide whether the offer of placement is appropriate and whether to accept the offer. 13 What to include in the written offer • What specialized instruction—Hours/Minutes? What? • What related services/DIS –Minutes? Frequency? When? Where? Who? • When will the services begin/end? • Where will the program/services be implemented, i.e., location? • Who is responsible for implementing the program/services? 14 Case in Point: Written Offer Case Example: Student v. Poway Issue: Did the District offer a FAPE when it offered an NPS placement Facts:  Student was placed in an SDC  Due to his continued behavioral issues and his lack of progress on goals, the District's educators felt that another environment would be more beneficial to Student.  IEP meeting held in February 2006 offered placement for Student at a NonPublic School, to include all the previously-offered related services and instruction.  District suggested three different schools, one located in Oceanside, California, and two located near or in Mission Valley, California, with Student to be transported daily by bus from his home.  None of the schools were indicated on the IEP document and no information was provided about the NPS programs except the names.  Mother declined to sign authorization to send out applications. 15 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 9. What to Do When… Lessons for the New Administrator Case in Point: Written Offer, cont’d OAH:  One of the procedural prerequisites determined to be of paramount importance by the Ninth Circuit is that an offer of FAPE to a student be specific and be made in writing.  This formal requirement [of a written offer of placement] has an important purpose that is not merely technical, and therefore should be enforced rigorously.  NPS was not identified, except to provide parent with three names.  NPS placements were not described or explained.  Procedural denial of FAPE because violated Union v. Smith, impeding the parents right to participate in the decision-making process 16 Number Three: What to do When…It’s Time to Conduct a Manifestation Determination Review 17 Manifestation Determination Reviews (MDRs): When to do them? • Must be held within 10 school days after the decision to impose a removal that constitutes a change of placement • Must include relevant IEP team members and other qualified personnel in a meeting. 34 CFR 300.530(e)(1) 18 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 10. What to Do When… Lessons for the New Administrator What to Consider in a MDR • Federal law requires the team consider all relevant information including: – Evaluation and diagnostic results; – Information supplied by the parents; – Any teacher observations of the child; and – The child’s IEP and placement. – Health records. – Discipline records. 19 Factors to Consider in a MDR • MD Tests: IEP team must consider: – If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or • An examination of the disability – If the conduct in question was the direct result of the LEA’s failure to implement the IEP • An examination of the LEA’s actions and the effect on disability – The conduct must be determined to be a manifestation of the student’s disability if either of the above applies. – Make sure you examine and answer both questions. 20 Manifestation Determinations, generally THE DETERMINATION - • Individualized and based on a case-by-case analysis • Not based on categorical labels • Not based on broad classifications or generalizations of a disability -- blanket decisions based on characteristics generally exhibited by other students with the same disability are prohibited • Not a simple analysis of right or wrong -- must determine whether the disability, as it affects the particular student, is related to that student’s specific misconduct. 21 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 11. What to Do When… Lessons for the New Administrator Manifestation Determination THE DETERMINATION - • An important consideration would be how severe is the disability for that student. Elk Grove USD, 16 EHLR 622 (SEA CA 1989). • The student’s IEP team should evaluate whether the student has any previously unidentified disabilities that could have caused the wrongdoing. Modesto City Schools, 21 IDELR 685 (SEA CA 1994). • A direct causal relationship between the behavior and the disability must be established. • When several factors contribute to the student's misbehavior, but his or her disability is one of the contributing factors, the relationship between his or her disability and misconduct is established. 22 MDR: If It’s Broken, Fix it • If the LEA, parents, and other members of the IEP team, determine that the child’s behavior was the direct result of the LEA’s failure to implement the IEP, then the LEA must take immediate steps to remedy deficiencies. 23 If the behavior is a manifestation… • If the IEP team determines that the child’s behavior was a manifestation of his/her disability, the student may not be disciplined AND • The IEP team MUST: – (i) conduct a functional behavior assessment (FBA) and implement a behavior intervention plan (BIP), OR 24 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 12. What to Do When… Lessons for the New Administrator If the behavior is a manifestation, cont’d – (ii) if child has a BIP, review the BIP and modify it, as necessary, to address the behavior, and – (iii) return the child to the placement from which the child was removed UNLESS • parents and the LEA agree to a change in placement as part of the modification of the BIP, or • if the student has been placed in a interim alternative education setting (IAES) under special circumstances (34 CFR 300.530(g)) 25 If the behavior is not a manifestation • If the IEP Team finds that the student’s behavior was not a manifestation of the student’s disability, the student can be disciplined like a general education student. 26 Manifestation Determination CASE-IN-POINT: MD Test Manifestation Determination Invalid Because District Failed to Provide Services. • 11th grade Student qualified for special education and related counseling services because of a specific learning disability and an auditory processing disorder. • Student periodically displayed hostility, irritability, antisocial behavior, aggressiveness, impulsiveness, and anxiety. • Student’s IEP team provided a BSP to address behavior. • Despite difficulties raised by her disability, student earned As and Bs on report cards. • Student was to receive counseling according to her IEP but did not receive such counseling. 27 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 13. What to Do When… Lessons for the New Administrator Manifestation Determination • In resource class, student answered her cell phone. • The teacher demanded the phone, student refused, and left the classroom. • The next day, Student discussed the incident with the dean of discipline, but as student left the dean’s office, she yelled “I hate this f___ing school.” • The dean suspended Student for violating the code of student conduct. • The student was later recommended for expulsion. • At a pre-expulsion IEP meeting, the District determined that Student’s conduct was not a manifestation of her disability. • Over the parents’ objections, Student was moved from her current placement and placed in an alternative site. 28 Manifestation Determination • OAH found – The District failed to provide counseling services as required by Student’s IEP. Without the parents’ knowledge, Student received only one counseling session with the dean of discipline who is not a trained counselor. – Because the District failed to provide Student with counseling services for anger management to address her behavior problems as required by her IEP, Student was granted relief from the manifestation determination. (Student v. Manteca Unified School Dist., (May 11, 2006) OAH Case No. 2006030182.) 29 Manifestation Determination CASE-IN-POINT: MD Test • Student with ADHD qualified under OHI. • Student’s unique needs relating to his ADHD were distraction, off-task behavior, impulsivity in class consisting of talking and acting-out, and difficulty in working independently. • Student’s ADHD symptoms were described as severe. • Student made a “dry ice bomb” which he hid in bathroom stall, which exploded and injured a teacher when the cap hit the teacher upon explosion. • District held a MDR, and found that student behavior was not a manifestation of his disability because he methodically planned it. • Parents disagreed with the determination and filed for an expedited hearing. 30 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 14. What to Do When… Lessons for the New Administrator Manifestation Determination The issue at hearing was:  Was Student’s conduct on February 1, 2010, which led to his expulsion, caused by, or determined to have a direct and substantial relationship to his ADHD, and therefore a manifestation of his disabilities? At hearing, Parent contended that student’s behavior was impulsive and direct manifestation of his disability School psychologist credibly testified that student’s conduct involved a chain of behaviors that do not support a finding of impulsivity: 1) Student researched how to obtain dry ice, 2) procured the dry ice, 3) chose a vacant place to construct the bomb – the bathroom,  4) constructed the bomb, and  5) chose a location to hid the bomb- a bathroom stall, while he waited for detonation 31 Manifestation Determination • OAH found that: – IEP team appropriately determined the student’s behavior was not a manifestation and that there was no failure to implement IEP, and – evidence showed student’s behavior was not substantially or directly related to his ADHD, as student constructed and planned the hiding of the dry ice bomb, and IEP team considered all relevant information before concluding the behavior was not a manifestation of student’s disability. (Parent v. Poway Unified School District, (July 27, 2010) OAH Case No. 2010060622) 32 Number Four: What to do When… Parent Refuses Consent to All or Part of the IEP 33 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 15. What to Do When… Lessons for the New Administrator Consent Provisions • It is important to understand the consent provision in the law for: 1) Initial assessment 2) Initial provision of special education services 3) For subsequent IEPs, reassessments, and changes in placement 34 Consent Provisions • Parental consent is not required – before reviewing existing data as part of an assessment or reassessment, or – before administering a test or other assessment that is administered to all children, unless before administration of that test or assessment, consent is required of the parents of all the children. – the screening of a student pupil by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation 35 Consent Provisions Rules of Consent for Initial Provision of Services: • (1) Must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child. • (2) Must make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services to the child. – AALRR Tip: Document your efforts to gain consent 36 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 16. What to Do When… Lessons for the New Administrator Consent Provisions Rules of Consent for Initial Provision of Services (cont.): • If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services, the public agency -– (i) May not file for due process to force services – (ii) Not be considered to be in violation of the requirement to make FAPE available to the child – (iii) not required to convene an IEP Team meeting or develop an IEP 37 Consent Provisions Rules of Consent for Subsequent IEPs, Reassessments and Changes in Placement • Informed parental consent is required • For a reassessment – Consent need not be obtained if the district can demonstrate that it took "reasonable measures to obtain such consent and the child's parent failed to respond." 20 USC 1414(c)(3); 34 CFR 300.300(c)(2) – Must document efforts to obtain consent for reassessment • detailed records of phone calls made, attempted and result of calls • records of home and work visits, • copies of correspondence sent to parent 38 Consent Provisions • Who Holds the Power? – Parent includes • A biological or adoptive parent of a child. • A foster parent • A guardian • A person acting in place of a parent • A surrogate parent Cal. Educ. Code § 56028(a) 39 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 17. What to Do When… Lessons for the New Administrator Requirement at Impasse • If the parent of the child consents in writing to the receipt of special education and related services for the child but does not consent to all of the components of the individualized education program, those components of the program to which the parent has consented shall be implemented so as not to delay providing instruction and services to the child. Cal. Ed. Code 56346(e) 40 Requirement at Impasse • Requirement to file for a due process hearing: – if the public agency determines that the proposed special education program component to which the parent does not consent is necessary to provide a FAPE, a due process hearing shall be initiated • If a due process hearing is held, the hearing decision shall be the final administrative determination and shall be binding upon the parties. • While pending, the child shall remain in his or her current placement, unless the parent and the public agency agree otherwise. 41 Requirement at Impasse • The 56346(f) Requirement: The plain meaning of the term "shall" in Education Code section 56346, subdivision . . . (f), is that the requirement is mandatory: the school district must file a request for due process hearing to resolve its impasse with a parent if it cannot provide a student a FAPE under the outstanding IEP. (See, e.g., Camptonville Union Elementary School District and Yuba County Special Education Local Plan Area 109 LRP 23255 (March 18, 2009) – OAH decisions have uniformly supported this interpretation. (See, e.g., San Diego Unified School Dist. v. Student, OAH Case No. N2007060523 (Sept. 4, 2007); Ocean View School Dist., et al., v. Student, OAH Case No. N2007050694 (Aug. 22, 2007); Manhattan Beach Unified School Dist. v. Student, OAH Case No. N2007030412 (July 31, 2007); Chula Vista Elementary School Dist. v. Student, OAH Case No. N2007040557 (July 26, 2007); Student v. Los Angeles Unified School Dist., OAH Case No. N2006020813 (July 11, 2007); see also, Murphy v. Timberlane Regional School Dist. (1st Cir. 1994) 22 F.3d 1186, 1195-1196.) 42 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 18. What to Do When… Lessons for the New Administrator Number Five: What to do When…Parent Revokes Consent Mid-Year to Services Already Consented to? 43 Informed Parental Consent • An LEA that is responsible for making a FAPE and related services available to a child with a disability under this part shall seek to obtain informed consent from the parent of the child before providing special education and related services to the child. 44 Revocation of Consent After Consent was Previously Given Here’s the Scenario: Parent revokes consent to a service mid-year, after parent had previously provided consent. What should you do?... 45 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 19. What to Do When… Lessons for the New Administrator Revocation is Not Retroactive • Once the service has been consented to and implemented, the District is not obligated to honor a request to cease providing a specific service, retroactively, merely because it has been requested. • How to respond to parent’s request? – Convene an IEP team meeting; – Discuss parent’s concern about the service; – Remember to assess prior to changing placement/removing services; – The proper way to say “no” to the parent’s request is to send a Prior Written Notice. 46 Revocation of Consent After Consent was Previously Given • If the parent revokes consent after implementation of the IEP has begun, then the district should continue to implement the IEP until the district and parent otherwise agree to a different appropriate placement or the dispute is resolved through the special education due process procedures. 47 Partial Revocation of Consent and Stay Put • In order to stop continued implementation of the service, parent may use the due process procedures of the regulations to cease a service that the parent believes is not appropriate for their child. • Meanwhile, the last agreed upon and implemented IEP remains stay-put. 48 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 20. What to Do When… Lessons for the New Administrator Number Six: What to do When… It’s not clear who is a “Parent” for Purposes of Making Special Education Decisions 49 Custody & Educational Rights • Where divorced parents have joint legal custody of a child, both parents share coequal rights and responsibilities in making general educational decisions on the child’s behalf, absent a court order or agreement to the contrary. (CA Fam. Code § 3003) • This coequal decision-making authority extends to decisions about special education. 50 Definition of “Parent” • Under Education Code section 56028, a biological or adoptive parent is presumed to be a “parent” for purposes of exercising the rights accorded to parents in connection with their child’s special education, including the right to provide or withhold consent to the implementation of an IEP, absent a judicial decree or order to the contrary. Westside Union School District, 35 IDELR 88, 101 LRP 309 (CA SEA 2001) (each parent has the right to request a due process hearing) 51 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 21. What to Do When… Lessons for the New Administrator Definition of “Parent”, CONTINUED • CA special education law also recognizes the following additional ways to meet the definition of “parent”: – A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child, including a responsible adult appointed for the child per Welfare & Inst. Code sections 361 and 726. – An individual acting in the place of a biological or adoptive parent, including a grandparent, stepparent, or other relative, with whom the child lives, or an individual who is legally responsible for the child’s welfare. – A surrogate parent who has been appointed under Govt. Code 7579.5 or 7579.6, and pursuant to IDEA’s provisions on appointment of surrogate parents. (continued) Definition of “Parent”, CONTINUED • “Parent” further defined in Education Code: – When more than one party meets the definitions of “parent,” the biological or adoptive parent who attempts to assert educational rights for a child shall be presumed to be the “parent” for purposes of special education law unless that biological or adoptive parent does not have legal authority to make such educational decisions. – If a court order identifies a particular person or persons to be the educational decision-making “parent,” that person or persons shall be determined the “parent” for purposes of Govt. Code sections 7570, et seq., and Welfare & Inst. Code sections 361 and 726. (Ed. Code, § 56028(b)(1) and (2)) Definition of “Parent”: Foster Parents • IDEA 2004 added “foster parent” under definition of “parent” unless state law, regulations, or contractual obligations otherwise prevent a foster parent from acting as a parent. (34 C.F.R. § 300.20(a)(2)) • Effective Oct. 10, 2007, the CA legislature re-defined “parent” – for special education purposes – to include a “foster parent” if the authority of the biological or adoptive parents to make educational decisions on the child’s behalf has been limited by court order. (Ed. Code, § 56028; 34 CFR § 300.30(b)(1) or (2)) © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 22. What to Do When… Lessons for the New Administrator Parental Consent Example • “If the biological parent of the child refuses consent for an initial evaluation of the child, and the parental rights of the biological parent have not been terminated in accordance with State law, or a court has not designated a foster parent to make educational decisions for the child in accordance with State law, a foster parent may not provide consent for an initial evaluation.” (Questions and Answers on Individualized Education Programs (IEPs), Evaluations, and Reevaluations, 111 LRP 63322 (OSERS 9/1/11); see also 34 CFR § 300.30(b)(1).) Definition of “Surrogate Parent” • IDEA requires the appointment of a “surrogate parent” when: 1. No parent can be identified; 2. The public agency, after reasonable efforts, cannot locate a parent; 3. The child is a ward of the State under State law; or 4. The child is an unaccompanied homeless youth as defined in the McKinney-Vento Homeless Assistance Act. • LEAs must have a method for: • Determining whether a child needs a surrogate parent; and • For assigning a surrogate parent. (34 CFR § 300.519(a), (b)) Number Seven: What to do When… You Receive an IEE Request? 57 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 23. What to Do When… Lessons for the New Administrator Independent Educational Evaluations Parents of a student with a disability have the right to obtain an independent educational evaluation (“IEE”) at public expense if they disagree with an evaluation completed by the District. (Title 34 C.F.R. 300.502 (b).) 58 Independent Educational Evaluations, Cont… • “IEE” means an evaluation conducted by a qualified examiner who is not employed by the District. • “Public expense” means that the District either pays the cost or ensures that the evaluation is provided at no cost to the parent. (Title 34 C.F.R. 300.502) 59 IEE Options 1. The District may offer to conduct another evaluation of its own with parent consent.  Using the same or another assessor within the District  Parent must agree in writing to postpone the request for the IEE 2. File a request for due process 3. Arrange for the IEE at public expense 60 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 24. What to Do When… Lessons for the New Administrator IEE Options, Cont… 4. If the parent request the District fund an IEE which has already been obtained consider the following:  Filing a request for due process;  Whether the assessment meets the District requirements; and  An agreement to obtain an alternative independent assessor Note: The District must not unreasonably delay taking action to the parent request, and must provide a copy of the parent rights and procedural safeguards. 61 IEE Options, Cont… Regardless of which Option the District chooses to follow, it must respond to Parent’s request for an IEE with a prior written notice, pursuant to the requirements of Title 34 C.F.R. 300.503 ( 62 Independent Educational Evaluations, Cont… • If the District includes observations in conducting its own assessments, it must allow comparable time to the independent evaluator – consistent with District visitation policies. (Title 34 C.F.R. 300.502) 63 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 25. What to Do When… Lessons for the New Administrator IEE Parent Rights • The District may ask why the parent objects to the District conducted assessment, but no explanation is required, nor can the District delay either providing the requested assessment at public expense or filing a request for due process as a result. • Parent is only entitled to one IEE for each District conducted assessment. (34 C.F.R. 300.502) 64 IEE District Criteria • If the parents obtain an IEE at public expense, or shares an evaluation obtained at their own expense, the results of the evaluation: – – Must be considered, if they meet agency criteria, in any decision concerning FAPE; and May be presented by any party as evidence at a due process hearing. (34 C.F.R. 300.502) 65 Number Eight: What to do When… Options for Dealing with Potentially Dangerous Special Education Students 66 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 26. What to Do When… Lessons for the New Administrator Interim Alternative Educational Setting – “Big 3”: School district may unilaterally remove a student to an IAES for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability if student: • Carries a weapon or possesses a weapon at school, on school premises, or to/at a school function; • Knowingly possesses or uses illegal drugs or sells/solicits the sale of a controlled substance while at school, on school premises, or at school function; or • Has inflicted serious bodily injury to another at school, on school premises, or at a school function 67 Dangerous Weapon • DEFINITION: • The term “dangerous weapon” means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2.5 inches in length. 68 Serious Bodily Injury • DEFINITION: • Bodily injury that involves (1) a substantial risk of death; (2) extreme physical pain; (3) protracted and obvious disfigurement; or (4) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. 69 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 27. What to Do When… Lessons for the New Administrator Multiple 45-Day Removals • A district cannot extend or renew a 45-day placement in an IAES for drugs/weapons in connection with the same offense. (Letter to Bachman, 29 IDELR 1092 (OSEP 1997).) • However, if the student engages in separate instances of misconduct or dangerous behavior, he may be placed in IAES for each occasion – adding up to more than one 45day IAES in a given school year. (64 Fed. Reg. 12,620 (1999).) 70 Substantially Likely to Result in Injury • Districts cannot unilaterally place a student in an IAES just because it feels that particular student poses a safety risk. • But, the district can file a due process hearing request to change placement if it feels that maintaining the student's current placement is substantially likely to result in injury to student or others. (34 CFR 300.532(a).) 71 Substantially Likely to Result in Injury • An expedited hearing must occur within 20 school days of the date the complaint requesting the hearing is filed. The SEA or LEA is responsible for arraigning this expedited (34 CFR 300.532(c)(2).) hearing. • Expedited hearings on disciplinary matters are subject to all of the IDEA’s procedural requirements, including the duty to offer/hold a resolution session. (Letter to Gerl, 51 IDELR 166 (OSEP 2008).) 72 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 28. What to Do When… Lessons for the New Administrator Substantially Likely to Result in Injury • If the IHO determines that the student’s current placement is substantially likely to result in injury to self or others, the IHO can order that the student be placed in an IAES for up to 45 days. (34 CFR 300.532(b)(2)(ii).) • The district can repeat this process if it feels that returning the student to the original placement is substantially likely to result in injury to self or others. (34 CFR 300.532(b)(3).) • Case Example: Court found that 13 year-old’s violent behavior in the IAES warranted a 45-day extension. (Westran R-I Sch. Dist., 51 IDELR 290 (SEA MO 2008).) 73 Substantially Likely to Result in Injury • Whether the placement is “substantially likely to result in injury” depends on the facts. In making factual determinations, the IHO will consider: – Nature of conduct – Extent of conduct – Frequency of conduct • Case Example: IHO approved IAES placement for 1st grader whose problem behaviors included pushing, tripping, punching, threatening classmates with scissors and pencils, and throwing furniture. (Braintree Pub. Schs., 5 ECLPR 119 SEA MA 2008). 74 Substantially Likely to Result in Injury • Verbal threats without injury are generally not sufficient to create a substantial likelihood of injury. • Case Examples: – Student saying he wanted the assistant principal “six feet under” was not enough. (Cabot Sch. Dist., 27 IDELR 304 (SEA AR 1997).) – Student who threatened mayhem, but had not done anything more than throw and violently push furniture. (Clinton County R-III Sch. Dist. v. C.J.K., 23 IDELR 306 (W.D. Mo. 1995).) – Student who used foul and threatening language also punched at his teacher, and threw a box of Jell-O was not enough when student didn’t injury anyone and his behavior changed after medication was modified. (Scranton Sch. Dist., 29 IDELR 133 (SEA PA 1998).) 75 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 29. What to Do When… Lessons for the New Administrator Honig Injunctions/TROs • School officials can in some cases, ask the courts to modify the placement of a dangerous child. The district can seek a Honig injunction to temporarily remove a dangerous student from his current placement. (Honig v. Doe, 559 IDELR 231 (U.S. 1988).) • Case Example: The district obtained a TRO to remove a 14 year-old boy who yelled, cursed, destroyed property, fought, and generally acted out of control. (Gadsden City Bd. of Educ. v. B.P., 28 IDELR 166 (N.D. Ala. 1998).) 76 Honig Injunctions/TROs • A temporary restraining order (TRO) may be issued for a short-term. A TRO usually lasts while a motion for preliminary injunction is being decided, and the court decides whether to drop the order or to issue a preliminary injunction. • TRO standard, Plaintiff must prove: • Likelihood of success on the merits • Extent to which the plaintiff is being irreparably harmed by the defendant's conduct • Extent to which the defendant will suffer irreparable harm if the TRO issues • Public interest 77 Number Nine: What to do When… Requirements for Defensible Transition Plans 78 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 30. What to Do When… Lessons for the New Administrator EFFECTIVE PLANNING • Beginning no later than the IEP in effect at the student’s 16th birthday, and updated annually thereafter, an IEP must include: – A statement of needed transition services [56043]; – Appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment and independent living skills; and – The transition services needed to assist the child in reaching those goals. (34 CFR 300.320 (b); Cal. Ed. 56345).) 79 EFFECTIVE PLANNING CONT’D . . . – In the case of an ITP, the LEA must invite the student to attend the IEP meeting if the purpose of the meeting is the consideration of the needed transition services. • If the student does not attend the IEP meeting, the LEA must take steps to ensure that the student’s preferences and interests are considered. (Cal. Ed. Code section 56341.) 80 EFFECTIVE TRANSITION PLANNING • Transition Planning is a 4-step process: – Identify the student’s postsecondary goals and present levels of performance through age appropriate assessments; – Develop annual goals to support the postsecondary goals; – Identify and provide the necessary transition services; – Complete the student’s Summary of Performance 81 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 31. What to Do When… Lessons for the New Administrator POSTSECONDARY GOALS • What are effective post secondary goals? – Appropriate measurable post-secondary goals based on age appropriate assessments related to training, education, employment, and where appropriate, independent living skills. (Cal. Ed. Code 56345.) • Postsecondary goals are based on what the student plans to do upon school exit. – Each student should have at least 2 and possibly 3 postsecondary goals: • Education and/or training, employment; and • And, where appropriate independent living. 82 POSTSECONDARY GOALS CONT’D . . . • If the IEP team writes postsecondary goals and the student does not achieve those goals upon school exit, is the LEA going to be held responsible? – Not necessarily. The requirement is that LEA’s prepare the student to achieve the goals and provide the services necessary to assist the child in achieving his/her postsecondary goals. 83 DETERMINATION OF PRESENT LEVELS OF PERFORMANCE • Along with the determination of postsecondary goals, the student’s present levels of performance information will be gathered from various sources, including other components of the student’s file and age appropriate assessments. 84 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 32. What to Do When… Lessons for the New Administrator AGE APPROPRIATE TRANSITION ASSESSMENTS • What are age appropriate assessments? • Academic assessments; • Career exploration surveys and questionnaires; and • Employment interest surveys. • Other sources. 85 AGE APPROPRIATE TRANSITION ASSESSMENTS CONT’D . . . • Transition assessment is an ongoing process of collecting data on the student’s needs, preferences and interests as they relate to the demands of current and future employment, education, living, and personal and social environments. • Assessment data serves as the common thread in the transition process for defining goals and services to be included in the student’s IEP. 86 AGE APPROPRIATE TRANSITION ASSESSMENTS, CONT’D . . . • What does the age appropriate assessment data provide? – Assists the student and IEP team in identifying interests and preferences; – Determine academic and functioning skills and match those skills to postsecondary goals; – Determining appropriate accommodations and supports necessary to help the student succeed; and – Determine appropriate instruction, activities and services that will assist the student in achieving post school goals. 87 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 33. What to Do When… Lessons for the New Administrator TRANSITION PLANNING OUTCOMEORIENTED It is important to remember that transition planning is an outcome-oriented process that promotes movement from school to postsecondary activities. 88 OUTCOMES TO CONSIDER • Postsecondary education – Admission to college – Earning a college degree – Admission/completion of trade school – Earning a GED – Adult education • Vocational Training – Obtaining employment – Maintaining employment – Volunteer positions • Integrated Employment, including supported employment – Obtaining a social security number – Requirements for appropriate support services – Obtaining employment – Maintaining employment • Independent living: – Selecting a lifestyle and living arrangements; – Money management; – Health care; – Mobility (travel, training, driver’s license); and – Nutrition, cooking/cleaning. • Community participation: – Obtaining necessary support services; and – Joining community organizations. 89 APPROPRIATE ANNUAL GOALS • Does the student know what his/her postsecondary goals are for education or training? – If not, annual goals to support self awareness and career exploration might be appropriate; and – If yes, annual goals to assist the student in obtaining additional information related to his/her postsecondary education and training, i.e., information related to entrance qualifications and financial aide, if appropriate. 90 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 34. What to Do When… Lessons for the New Administrator APPROPRIATE ANNUAL GOALS CONT’D . . . • Does the student know what his/her postsecondary goals are for employment? – If not, again, annual goals to support self awareness and career exploration might be appropriate. – If so, annual goals related to the job qualifications, salary scales, promotional opportunities, required education. 91 APPROPRIATE ANNUAL GOALS CONT’D . . . • Does the student know what their postsecondary options are for independent living? – Annual goals to support daily living skills, exploration about housing options and community resources might be appropriate. • Does the student need connections to postsecondary adult service providers? – Annual goals to establish those connections may be appropriate. 92 TRANSITION SERVICES • Both the IDEA and the Cal. Ed. Code require “transition services,” including courses of study, to assist the student in reaching his/her postsecondary goals. – What are courses of study? – What are transition services? 93 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 35. What to Do When… Lessons for the New Administrator TRANSITION SERVICES CONT’D . . . • What are Courses of study? – Multi-year description of coursework necessary to achieve the student’s desired postsecondary goals. – For student working on graduating from high school, a copy of their high school transcripts that list the courses taken as well as the courses necessary to achieve the goal. – For student working toward a certificate of completion, a listing of the academic and functional courses necessary to complete the course of study. 94 TRANSITION SERVICES CONT’D . . . • The term transition services means a coordinated set of activities that: – Includes services developed within an outcome-oriented process that promote movement from school to post-school activities; – Is based on the individual needs taking into account preferences and interests; and – Includes instruction, related services, community involvement, employment, adult living, and where appropriate, daily living skills. 95 TRANSITION SERVICES CONT’D . . . • Transition Services may include: – – – – Instruction on safety issues, public transportation and cooking; Self-advocacy instruction; Assistance completing job applications and balancing a checkbook; Monthly/quarterly meetings with the school counselor to support the goal of graduating high school; and – Counseling services to address anger management that could arise in workplace environments, safety issues, self-advocacy, social skills development. 96 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 36. What to Do When… Lessons for the New Administrator TRANSITION SERVICES CONT’D . . . • Transition Services Cont’d . . – Job Shadowing opportunities; – Trips to college for tours of facilities and mobility instruction; – Trips utilizing public transportation; – Part-time employment services through work-ability programs; and – Assistance obtaining a social security number or driver’s license. 97 Number Ten: What to do When:…You Need to Say “No” to a Parent— It’s All in the Way You Say It 98 It’s All in the Way You Say It: Choosing Your Words Wisely Some Examples: To Say or Not to Say, That is the Question 99 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 37. What to Do When… Lessons for the New Administrator It’s All in the Way You Say It: Choosing Your Words Wisely Say or Not Say? “We don’t have staff available to provide individual speech services, so we will need to provide group speech services to [Student].” 100 It’s All in the Way You Say It: Choosing Your Words Wisely • DON’T SAY: We don’t have staff available to provide individual speech services right now, so we will need to provide group speech services to [Student].” • DO SAY: – “After reviewing the goals, we recommend that your child receive two thirty-minute group sessions of speech language services.” Caution: The services offered must be based on the student’s needs, not staff availability/convenience. 101 It’s All in the Way You Say It: Choosing Your Words Wisely Say or Not Say? “We understand that you are requesting a 1:1 aide for [Student], but we do not believe [Student] requires an aide at this time. 102 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 38. What to Do When… Lessons for the New Administrator It’s All in the Way You Say It: Choosing Your Words Wisely • DO SAY: “We understand that you are requesting a 1:1 aide for [Student], but we do not believe [Student] requires an aide at this time.” • BUT….ALSO SAY: – Explain why Student does not require a 1:1 aide – Document this in IEP notes – Prepare a Prior Written Notice if all elements for a PWN have not been covered in the IEP document and notes 103 It’s All in the Way You Say It: Choosing Your Words Wisely Say or Not Say? “We do not provide ESY services to resource students.” 104 It’s All in the Way You Say It: Choosing Your Words Wisely • DON’T SAY: – “We do not provide ESY services to resource students.” • DO SAY: – “You child does not require ESY services. During breaks, he does not demonstrate regression that cannot be recouped in a reasonable time period after coming back to school.” 105 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 39. What to Do When… Lessons for the New Administrator It’s All in the Way You Say It: Choosing Your Words Wisely Say or Not Say? “We received your request for a non-public school placement for your daughter, and we are taking it under advisement.” 106 It’s All in the Way You Say It: Choosing Your Words Wisely • DO SAY: • “We received your request for a non-public school placement for your daughter, and we are taking it under advisement.” • BUT DON’T FORGET: – To respond to the request. Do not let it go unanswered! – Consider convening an IEP team meeting to discuss parent’s concerns and if any revisions to your IEP/offer of FAPE are needed – Prepare a Prior Written Notice 107 It’s All in the Way You Say It: Choosing Your Words Wisely Remember that:  What you say should be student centered.  Placement and/or services offered are not based on staff schedules or District programs.  There are no generalizations in the IEP process.  Placement and/or services offered are based on the student’s individual needs. 108 © 2014 Atkinson, Andelson, Loya, Ruud & Romo
  • 40. What to Do When… Lessons for the New Administrator It’s All in the Way You Say It: Choosing Your Words Wisely Strategies When Disagreement Arises:  Prepare a Prior Written Notice  Consider Alternative Dispute Resolution  Mediation-Only  Due Process Hearing Request, if necessary. 109 Question Answer Session Thank You For questions or comments, please contact: Karen Gilyard at kgilyard@aalrr.com or Jennifer Fain at jfain@aalrr.com © 2014 Atkinson, Andelson, Loya, Ruud & Romo