THE NORTH SUBURBAN     AUTISM CHAPTER“THE NEW SPECIAL EDUCATION  LAW: WHAT TO LOOK FOR”         November 1, 2005          ...
TABLE OF CONTENTSThe Final Word on School Health Services ................... 1 - 4The Rowley Case ..........................
THE FINAL WORD   ON SCHOOLHEALTH SERVICES: THE U.S. SUPREMECOURT DECISION IN  CEDAR RAPIDS CSD v. GARRET F.       Whitted,...
THE FINAL WORD ON SCHOOL HEALTH SERVICES:                     CEDAR RAPIDS CSD v. GARRET F.                               ...
1.      “Continuous” and “Complex” (Translation: Expensive)        The school district used an argument that the services ...
The court held that regardless of how expensive or complex (the dissent points outthat the services will cost the school d...
THE ROWLEY CASE:WHAT DOES IT REALLY      MEAN?        Whitted, Cleary & Takiff LLC      3000 W. Dundee Road, Suite 303    ...
THE ROWLEY CASE: WHAT DOES IT REALLY MEAN?                                  By Brooke R. Whitted                          ...
Education. The Rowleys then brought an action in the United State District Court for theSouthern District of New York, cla...
exaggeration to say that Congress placed every bit as much               emphasis upon compliance with procedures giving p...
court held that academic performance at or above age level does not necessarily mean a child isnot "disabled," or that the...
reasonably calculated to enable the child to achieve passing marks                and advance from grade to grade. [FN26] ...
Selected Case Footnotes(Emphasis is Added)                                            25. We do not hold today that every ...
proposition that "any" satisfactory        services now means that many of these individuals willgrade record will do. Mor...
which their IEP is drafted. In addition, the definition of                                           "free appropriate pub...
(73 L.Ed.2d 704)                                    The inadequacies of the District of                                   ...
Conclusion:         Special educators should take special notice of the Rowley case, as it is still good law andit acts as...
SELECTEDREGULATORYDEFINITIONS    Whitted, Cleary & Takiff LLC  3000 W. Dundee Road, Suite 303        Northbrook, IL 60062(...
23 ILLINOIS ADMINISTRATIVE CODE CH. I, S.226                     SUBTITLE A SUBCHAPTER fSection 226.75 DefinitionsEducatio...
Specific Learning Disability: A disorder in one or more of thebasic psychological processes involved in understanding or i...
NEW IDEIA LEARNING DISABILITIES DEFINITIONS:Statutory Definition: (Sec. 602, Definitions)(30) SPECIFIC LEARNING DISABILITY...
§ 300.308 Group members.The determination of whether a child suspected of having a specific learning disability is a child...
(2)(i) The child fails to achieve a rate of learning to make sufficient progress to meet       State-approved results in o...
THE 2004     IDEIA    Whitted, Cleary & Takiff LLC  3000 W. Dundee Road, Suite 303        Northbrook, IL 60062(847) 564-86...
IDEIA RE-AUTHORIZATION      The new Individuals with Disabilities Education Improvement Act of2004 (“IDEIA 2004”) was sign...
SUMMARY OF IDEIA 2004 CHANGESSection                                Change                                      ImpactPurp...
Section                                           Change                                              Impact    Related Se...
Section                                           Change                                              Impact    Child Find...
Section                                            Change                                              Impact    Teacher C...
Section                                         Change                                            Impact    Reevaluations:...
Section                              Change                                      ImpactSpecific Learning Disabilities     ...
Section                                  Change                                      ImpactIEPs:                          ...
Section                                 Change                                         ImpactIEPs:                        ...
Section                                 Change                                      Impact                                ...
Section                              Change                                     Impact                                    ...
Section                            Change                                      ImpactResolution Session:                Af...
Section                            Change                                      ImpactResolution Session: (cont’d)       If...
Section                            Change                                      ImpactAttorneys Fees: (cont’d)           A ...
Section                             Change                                           ImpactManifestation Determination:   ...
Section                            Change                                      Impact45-Day Removal:                    Ne...
Section                              Change                                         ImpactProtections for Children Not Yet...
NEW PAPERWORK REQUIREMENTS                        FOR SCHOOL DISTRICTS, PARENTS                             (as required b...
The north suburban autism chapter   the new special education law - what to look for
The north suburban autism chapter   the new special education law - what to look for
The north suburban autism chapter   the new special education law - what to look for
The north suburban autism chapter   the new special education law - what to look for
The north suburban autism chapter   the new special education law - what to look for
The north suburban autism chapter   the new special education law - what to look for
The north suburban autism chapter   the new special education law - what to look for
The north suburban autism chapter   the new special education law - what to look for
The north suburban autism chapter   the new special education law - what to look for
The north suburban autism chapter   the new special education law - what to look for
The north suburban autism chapter   the new special education law - what to look for
The north suburban autism chapter   the new special education law - what to look for
The north suburban autism chapter   the new special education law - what to look for
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The north suburban autism chapter the new special education law - what to look for

  1. 1. THE NORTH SUBURBAN AUTISM CHAPTER“THE NEW SPECIAL EDUCATION LAW: WHAT TO LOOK FOR” November 1, 2005 7 – 9 p.m. Skokie Village Hall Lower Level (Community Room) 5127 Oakton Street Skokie, IL 60076 Presented by: Brooke R. Whitted Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX Website: www.whittedclearylaw.com Email: bwhitted@whittedclearylaw.com 1
  2. 2. TABLE OF CONTENTSThe Final Word on School Health Services ................... 1 - 4The Rowley Case ........................................................... 5 - 15Selected Regulatory Definitions................................... 16 - 21The 2004 IDEIA........................................................... 22 - 41School Student Records Act......................................... 42 – 48Release Forms .............................................................. 49 – 53 1
  3. 3. THE FINAL WORD ON SCHOOLHEALTH SERVICES: THE U.S. SUPREMECOURT DECISION IN CEDAR RAPIDS CSD v. GARRET F. Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX Website: www.whittedclearylaw.com 1
  4. 4. THE FINAL WORD ON SCHOOL HEALTH SERVICES: CEDAR RAPIDS CSD v. GARRET F. by Brooke R. WhittedI. Facts and Case History When he was four years old, Garret’s spinal column was severed in a motorcycleaccident. There was no adverse effect on his mental capacities. He is ventilatordependent and needs someone nearby at all times. In 1993, mother requested the schooldistrict to be financially liable for one-to-one school nursing services while Garret was atschool. The school district denied this and thought at that time they were not responsiblefor services they felt were “medical.” Garret was the only ventilator dependent pupil inthis district of 17,500 students. Mother requested a hearing and during the proceedings,the school district admitted the services were capable of being provided by a non-physician. The administrative hearing officer held that the school district had to providethe services, for this reason, according to the Tatro case. The school district thenappealed the hearing officer’s administrative decision in federal court, and the courtupheld the hearing officer’s ruling, granting the parent’s motion for summary judgment.The Court of Appeals affirmed, using the Tatro “bright line” test, since it was undisputedthat Garret could not attend school if the services were not provided.II. The Supreme Court Opinion A. District’s Position In its petition, the school district asked the Supreme Court to overrule the appellatecourt in favor of a ”multi factored” test, not a “bright line” test. The Supreme Court heldin favor of the Appellate Court because, they said, the text of the related servicesdefinition is very clear, and here, the district did not challenge the idea that Garret neededthe services requested. The court further commented in a footnote that they see no reasonto either revise Tatro or rewrite the U.S. Department of Education’s regulations, whichfavor the test used by the Appellate Court. The court therefore held that the in schoolservices, while more extensive and expensive, must be provided, and further that Garret’sneeds were no more “medical” then those needed by Amber Tatro in her case. [1999 WL104410*4.] 2
  5. 5. 1. “Continuous” and “Complex” (Translation: Expensive) The school district used an argument that the services were required in a complexform and they were necessarily “continuous.” Yet the court said unequivocally that “thedistrict’s multi factor test is not supported by any recognized source of legal authority.”Just because “continuous” services may be more costly and require more personnel doesnot make them any more “medical” under Tatro. [Footnote 8 at 1999 WL104410*5.] 2. Limitations of “Existing” Staff The court further stated that the “district cannot limit educational access simplyby pointing to the limitations of existing staff. The district must hire specially trainedpersonnel as required by law.” As to this problem of existing school staff being unable tomeet all of their responsibilities and provide for Garret too, the concept was dismissedout of hand. As in Honig, the U.S. Supreme Court declined to read into the law adefinition that was not present. The court was remarkably consistent here. Note alsofootnote 9 (at 1999 WL104410*5) which mentions that Garret had a teaching assistantwho also was a qualified LPN. In Iowa, the State Board of Nursing has held that RN’scan delegate responsibilities to LPNs. The court further held that school districts cannot use cost itself in the definition ofrelated of related services. This would be “judicial law making without any guidancefrom Congress.” Citing Rowley, as courts always do, the court further required thatdistricts must “open the door” of opportunity to all qualified children. There is no“onerousness” exception.III. Summary The analysis in this case is just as simple as that found in the Tatro case: ismeaningful access to the public schools assured? This is not about the “level ofeducation that a school must finance once access is attained.” To be specific, the servicesat issue were as follows: 1. Ventilator checks; 2. Ambubag (manual breathing assistance) when ventilator is being maintained and as needed; 3. Urinary bladder catheterization; 4. Suctioning of tracheotomy tube as needed; 5. Getting Garret into a reclining position five minutes during every hour; and 6. Assistance from someone who is familiar with emergency procedures, in other words, at least an LPN. 3
  6. 6. The court held that regardless of how expensive or complex (the dissent points outthat the services will cost the school district $18,000 per year), the services must beprovided if Garret is to remain in school. It was held that the district is required toprovide these services and further, that the Neely and Detsel cases (appellate casesfavoring the approach of the district) have now been abrogated.IV. Conclusion The U.S. Supreme Court has now adopted the Tatro “bright line” test: if a relatedservice is required to enable a qualified disabled pupil to remain in school, it must beprovided as long as it is not a purely “medical” service. And “medical” is providercontrolled, that is, if the service can only be provided by a licensed physician, it is anexempt “medical” service unless it is needed for diagnostic or evaluative purposes. If,however, the service is capable of being delivered by a non-physician, it must beprovided by school districts regardless of any financial or staffing burdens the act ofproviding the services might impose. The Supreme Court has again - and quitepredictably in light of the Honig case on expulsion - read the Act for its plain, simplemeaning and has again declined to “read in” exceptions that are not present. 4
  7. 7. THE ROWLEY CASE:WHAT DOES IT REALLY MEAN? Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX Website: www.whittedclearylaw.com 5
  8. 8. THE ROWLEY CASE: WHAT DOES IT REALLY MEAN? By Brooke R. Whitted Whitted Cleary & Takiff, LLC INTRODUCTION The case of Rowley v. Hendrick Hudson School District 1 was the U.S. Supreme Courtsfirst interpretation of what was then called the Education for All Handicapped Children Act (nowthe Individuals with Disabilities Education Act, “IDEA”). This important decision is requiredreading for anyone working in special education. The case concerned a hearing impaired girlnamed Amy Rowley, who was a student at the Furnace Woods School in Hendrick HudsonCentral School District, Peekskill, N.Y. Amy had minimal residual hearing and was an excellentlip reader. During the year before she began attending school, a meeting between her parentsand the school administrator resulted in a decision to place her in a regular kindergarten class.Several administrators prepared for Amys arrival by attending a course in sign languageinterpretation, and a teletype machine was installed in the principals office to facilitatecommunication with her parents, who were also deaf. At the end of the trial placement it wasdetermined that Amy should remain in the kindergarten class, but that she should be providedwith an FM transmitter. Amy successfully completed her kindergarten year. As required by the Act, an IEP was prepared for Amy during the fall of her first gradeyear. The IEP provided that Amy should be educated in a regular classroom, should continue touse the FM device, and should receive instruction from a tutor for the deaf for one hour each dayand from a speech therapist for three hours each week. The Rowleys agreed with parts of theIEP, but insisted that Amy also be provided a qualified sign language interpreter in all heracademic classes in lieu of the assistance proposed in other parts of the IEP. Such an interpreterhad been placed in Amys kindergarten class for a two-week experimental period, but it wasreported that Amy had no need for this service. This conclusion was reached after consultationwith the school districts “Committee on the Handicapped,” which had received expert evidencefrom Amys parents on the importance of an interpreter. The Committee also receivedinformation from Amys teacher and other persons familiar with her academic and socialprogress, and visited a class for the deaf. When their request for an interpreter was denied, theRowleys demanded and received an administrative hearing. After receiving evidence from bothsides, the hearing officer agreed with the administrators determination that an interpreter was notnecessary because "Amy was achieving educationally, academically, and socially" without suchassistance. The examiners decision was affirmed on appeal by the New York Commissioner of1 Board of Education of the Hendrick Hudson Central School District, et. al. v. Amy Rowley, et. al., 458 U.S. 176, 102S.Ct.3034 (1982). 6
  9. 9. Education. The Rowleys then brought an action in the United State District Court for theSouthern District of New York, claiming that the administrators denial of the sign languageinterpreter constituted a denial of the "free appropriate public education" guaranteed by the Act.(Excerpt from the courts own description at 458 US 176 at 183) The holdings in the Rowley case have become the standard of analysis for everysubsequent special education case arising in the Federal and State courts. Consequently, aworking knowledge of the fundamental analysis developed by theSupreme Court justices is important when evaluating any special education matter. In thispaper, this analysis will be examined in detail. Any practitioner or educator looking at a specialeducation file should keep this analysis in mind at all times. Since all other courts do this aswell, the questions asked by the Rowley court are instructive even today, well over twenty yearslater.The Rowley Questions: These are best presented in the form originally developed by the Supreme Court: Therefore, a courts inquiry in suits brought under §1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act? [FN27] And second, is the individualized education program developed through the Acts procedures reasonably calculated to enable the child to receive educational benefits? [FN28] If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more. (458 US 176, 204) (Emphasis added.) As the analysis goes, if the school district has not complied with the Federally mandatedprocedures, and if the violation resulted in some form of significant harm to the student, alleducational decision making from the point of the violation forward is suspect. What this meansis that judges will be more likely to step in and substitute their judgment for that of the educators,given a significant procedural violation. If, on the other hand, the school district has compliedwith all of the procedures in the Act, then the analysis requires asking the second "Rowleyquestion." The Supreme Court, however, first examines the priorities assigned by Congress toprocedural requirements: But although we find that this grant of authority is broader than claimed by petitioners, we think the fact that it is found in §1415, which is entitled "Procedural Safeguards," is not without significance. When the elaborate and highly specific procedural safeguards embodied in §1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no 7
  10. 10. exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e.g. §§1415(a)-(d), as it did upon the measurement of the resulting IEP against a substantive standard. We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP. (458 US 176, 204; emphasis added.)"Significant" Violations: A recurrent problem is whether a procedural violation under Rowley is "significant." In2002, a district was held (at 38 IDELR 85) to have violated "several" procedural requirements ofthe IDEA but even so, the student received all of his IEP services. The court therefore concludedthat there was no resulting denial of a free appropriate public education under IDEA. Theprocedural violation, therefore, must actually result in some harm to the student before itbecomes "significant."Adverse Educational Impact: Another recurrent problem is the issue of a student passing from grade to grade and stillremaining eligible for services. Amy Rowley herself got good grades, and the court held that shewas not entitled to a sign language interpreter as requested by her parents. This did not meanthat she was ineligible for other special education services, as she was still hearing impairedand met the definitional requirements. In fact, the court itself in Rowley said: We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to this situation. (458 US 176 at 202; emphasis added.) In the Cornwall case (17 EHLR 10239/1991) the court held that there was a significantimpact on educational performance even though the child had not failed any courses. In Yankton(93 F. 3rd 1369, 8th Cir. 1996), a cerebral palsy child was getting high grades but was stillentitled to specially designed instruction and related services. In Schoenfield (8th Cir. 1998) the 8
  11. 11. court held that academic performance at or above age level does not necessarily mean a child isnot "disabled," or that the education satisfied the standard of appropriateness under Rowley. It can be seen, then, that while Rowley holds that passage from grade to grade is oneimportant indicator of whether an educational benefit has been conferred, it is not the solecriterion but should be "in the mix" of other considerations. It is a fatal mistake fora school district to declare that a child is ineligible solely because he or she is receivingpassing grades.Educational Benefits: The courts own language serves to explain this prong of the Rowley test with the greatestskill: Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from education. The statutory definition of "free appropriate public education," in addition to requiring the States to provide each child with "specially designed instruction," expressly requires the provision of "such…supportive services…as may be required to assist a handicapped child to benefit from special education." §1401(17). We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. [FN23] (458 US 176 at 200, emphasis added). And this analysis is extended to the provision of a FAPE for eligible children: When the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a "free appropriate public education," we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the States educational standards, must approximate the grade levels used in the States regular education, and must comport with the childs IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be 9
  12. 12. reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. [FN26] (458 US 176 at 202, emphasis added.) The question of how to deal with students who are not capable of obtaining passing gradesunder any circumstances is not clearly answered by the Supreme Court in Rowley. However, thefootnotes make reference to the required full continuum of alternative settings, and the need forsome students to be placed in settings other than the mainstream. It is clear, especially in light ofdecisional case law subsequent to Rowley, that when a child is placed in a more restrictivesetting, the decision must be driven by the unique need of the student and not by administrativeconvenience or other factors (see, e.g., Beth B. v. Mark VanClay and School District #65 (FederalAppellate Case Decided March 5, 2002) [2002 WL 341017, 36 IDELR 121 (7th Cir.). 10
  13. 13. Selected Case Footnotes(Emphasis is Added) 25. We do not hold today that every handicapped(73 L.Ed.2d 710) child who is advancing from grade to grade in a regular public school system is automatically receiving a "free appropriate public education." In this case, however, we find Amys academic progress, when considered with the special services and professional consideration accorded by the Furnace Woods School administrators, to be dispositive.But see footnote 23! 28. When the handicapped child is being educated in the regular classrooms of a public school system,(73 L.Ed.2d 712) the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit. See Part III, supra.This note is from the Dissent: 1. The Courts opinion relies heavily on theJustices White, Brennan, and Marshall statement, which occurs throughout the legislative history, that, at the time of enactment, one million of the roughly eight million handicapped children in the United States were excluded entirely from the public school system and more than half were receiving an inappropriate education. See, e.g., ante, at 189, 195, 196-197, 73 L Ed 2d, at 701, 705, 706. But this statement was often likened to statements urging equal educational opportunity. See, e.g., 121 Cong Rec 19502 (1975) (remarks of Sen. Cranston); id., at 23702 (remarks of Rep. Brademas). That is, Congress wanted not only to bring handicapped children into the schoolhouse, but also to benefit them once they had entered.(Footnote 23) "With proper education services, many would be able to become productive citizens, contributing toTHIS NOTE devotes substantial space society instead of being forced to remain burdens.and time to the concept of self- Others, through such services, would increase theirsufficiency and this should be pointed independence, thus reducing their dependence onout to any hearing officer, society." S. Rep, at 9. See also HR Rep, at 11.administrator, or attorney who insists Similarly, one of the principal Senate sponsors of thethat the opinion stands for the rigid Act stated that "providing appropriate educational 11
  14. 14. proposition that "any" satisfactory services now means that many of these individuals willgrade record will do. Moreover, the be able to become a contributing part of our society,presence of relaxed grading standards and they will not have to depend on subsistence(i.e., giving passing grades just for payments from public funds." 121 Cong Rec 19492trying) does not assist the pupil in the (1975) (remarks of Sen. Williams). See also id., atpermanent and long-range 25541 (remarks of Rep. Harkin); id., at 37024-37025development of self-sufficiency skills. (remarks of Rep. Brademas); id., at 37027 (remarks of Rep. Gude); id., at 37410 (remarks of Sen. Randolph); id., at 37416 (remarks of Sen. Williams). The desire to provide handicapped children with an attainable degree of personal independence obviously anticipated that state educational programs would confer educational benefits upon such children. But at the same time, the goal of achieving some degrees of self-sufficiency in most cases is a good deal more modest than the potential maximizing goal adopted by the lower courts. Despite its frequent mention, we cannot conclude, as did the dissent in the Court of Appeals, that self- sufficiency was itself the substantive standard, which Congress imposed upon the States. Because many mildly handicapped children will achieve self- sufficiency without state assistance while personal independence for severely handicapped may be an unreachable goal, "self-sufficiency" as a substantive standard is at once an inadequate protection and an overly demanding requirement. We thus view these references in the legislative history as evidence of Congress intention that the services provided handicapped children be educationally beneficial, whatever the nature or severity of their handicap.(Footnote 21) The use of "appropriate" in the language of the Act, although by no means definitive, suggests thatThe second recognition herein that Congress used the word as much to describe thesome "mainstream" settings, while less settings in which handicapped children should berestrictive, are simply not appropriate educated as to prescribe the substantive content orfor the education of some handicapped supportive services of their education. For example, §children. Again in opposition to 1412(5) requires that handicapped children be educatedreflexive LRE and "full inclusion" in classrooms with non-handicapped children "to thearguments used by management maximum extent appropriate." Similarly, § 1401(19)attorneys. provides that, "whenever appropriate," handicapped children should attend and participate in the meeting at 12
  15. 15. which their IEP is drafted. In addition, the definition of "free appropriate public education" itself states that instruction given handicapped children should be at an "appropriate preschool, elementary, or secondary school" level. § 1401(18)(C). The Acts use of the word "appropriate" thus seems to reflect Congress recognition that some settings simply are not suitable environments for the participation of some handicapped children.73 L.Ed.2d 708 – from the body of We therefore conclude that the "basic floor ofthe opinion: opportunity" provided by the Act consists of access to specialized instruction and related services whichThis Note is one of the most are individually designed to provide educationalsignificant parts of the opinion, as it benefit to the handicapped child. 23explains what the Court IS and ISNOT deciding. While "self- 23. This view is supported by the congressionalsufficiency" is not the exclusive intention, frequently expressed in the legislative historyfactor, it is an important factor in that handicapped children be enabled to achieve adetermining if an educational benefit reasonable degree of self-sufficiency. After referringhas been "conferred." to statistics showing that many handicapped children were excluded from public education, the Senate(73 L.Ed.2d 709) Report states: "The long range implications of these statistics are that public agencies and taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain such persons as dependents and in a minimally acceptable lifestyle."The language of "educational benefit." 15. The only substantive standard, which can beThe root of this language is not just implied from these cases, comports with the standardthat the child must receive "any" implicit in the Act. PARC states that each child mustbenefit: the benefit must be "received" receive "access to a free public program of educationwithin the context of the childs unique and training appropriate to his learning capabilities,"needs, not the needs of the agency. 334 F. Supp, at 1258 (emphasis added), and that furtherThe origin of the language is state action is required when it appears that "the needsexplained in this note – as a way of of the mentally retarded child are not being adequatelyproviding handicapped children with served," id., at 1266 (emphasis added). Mills alsoan inviolable access to educational speaks in terms of "adequate" educational services, 348services, which provision this court, F Supp, at 878, and sets a realistic standard ofreads very strictly (see Honig v. Doe, providing some educational services to each child484 U.S. 305, 308 (1988)). when every need cannot be met. 13
  16. 16. (73 L.Ed.2d 704) The inadequacies of the District of Columbia Public School System whether occasioned by insufficient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the exceptional or handicapped child than on the normal child." Id., at 876.While the EHA does not mandate 21. In seeking to read more into the Act than itsmaximization of benefits under this language or legislative history will permit, the Uniteddecision, note that settled decisional States focuses upon the word "appropriate," arguingcase law provides that states which that "the statutory definitions do not adequately explainchoose to grant greater rights than the what [it means]." Brief for United States as AmicusFederal mandate requires must do so Curiae 13. Whatever Congress meant by anuniformly – and the state standard "appropriate" education, it is clear that it did notwill in such cases prevail. mean a potential maximizing education.(73 L.Ed.2d 706) The term as used in reference to educating the handicapped appears to have originated in the PARC decision, where the District Court required that handicapped children be provided with "education and training appropriate to [their] learning capabilities." 334 F Supp, at 1258. The word appears again in the Mills decision, the District Court at one point referring to the need for "an appropriate education program," 348 F Supp, at 879, and at another point speaking of a "suitable publicly supported education," id., at 878. Both cases also refer to the need for an "adequate" education. See 334 F Supp, at 1266; 348 F Supp, at 878.Independence and Self Sufficiency: At 20 U.S.C. 1400 (c)5(E)ii, it is indicated that 20 years of research under the old IDEAhas demonstrated that training people through high quality intensive professional developmentensures that these personnel have the skills to enable children to be prepared to leadproductive, independent, adult lives to the maximum extent possible. This language in the"purposes" clause of Rowley appears to provide a potential argument that the Rowley standard ofrequiring districts to provide "adequate" services might have been elevated. In addition, atSection 1400(d), under purposes (1)A, one of the purposes of the IDEA is to enable individualsto meet their unique needs and prepare them for employment and independent living. Thisis reminiscent of the footnote discussion in the Rowley case. It is clear that one of the purposesof the Act is to prepare students for independence to the extent that their abilities permit. 14
  17. 17. Conclusion: Special educators should take special notice of the Rowley case, as it is still good law andit acts as the blueprint for all cases to follow. The two Rowley questions emphasizing proceduralcompliance and the benefits of the IEP should be committed to memory. Finally, the focus ofthe decision on what is “appropriate” for special education students should be given specialemphasis, especially in light of the social emphasis on so-called “inclusion” in recent years. 15
  18. 18. SELECTEDREGULATORYDEFINITIONS Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062(847) 564-8662 (847) 564-8419 FAXWebsite: www.whittedclearylaw.com 16
  19. 19. 23 ILLINOIS ADMINISTRATIVE CODE CH. I, S.226 SUBTITLE A SUBCHAPTER fSection 226.75 DefinitionsEducational Performance: A student’s academic achievement andability to establish and maintain social relationships and toexperience a sound emotional development in the schoolenvironment.Emotional Disturbance:(includes schizophrenia but does not applyto children who are socially maladjusted, unless it isdetermined that they have an emotional disturbance): A conditionexhibiting one or more of the following characteristics over anextended period of time and to a marked degree that adverselyaffects a child’s educational performance: An inability to learn that cannot be explained by intellectual, sensory, or health factors; An inability to build or maintain satisfactory interpersonal relationships with peers and teachers; Inappropriate types of behavior or feelings under normal circumstances; A general pervasive mood of anxiety or unhappiness or depression; or A tendency to develop physical symptoms or fears associated with personal or school problems. 17
  20. 20. Specific Learning Disability: A disorder in one or more of thebasic psychological processes involved in understanding or inusing language, spoken or written, that may manifest itself inan imperfect ability to listen, think, speak, read, write,spell, or do mathematical calculations, including suchconditions as perceptual disabilities, brain injury, minimalbrain dysfunction, dyslexia, and developmental aphasia. (Theterm does not include learning problems that are primarily theresult of visual, hearing, or motor disabilities, of mentalretardation, of emotional disturbance, or of environmental,cultural, or economic disadvantage.Autism: A developmental disability significantly affectingverbal and nonverbal communication and social interaction,generally evident before age three, that adversely affects achild’s educational performance. (A child who manifests thecharacteristics of autism after age 3 could be diagnosed ashaving autism if the other criteria of this Section aresatisfied.) Other characteristics often associated with autismare engagement in repetitive activities and stereotypedmovements, resistance to environmental change or change in dailyroutines, and unusual responses to sensory experiences. The termdoes not apply if a child’s educational performance is adverselyaffected primarily because the child has an emotionaldisturbance. 18
  21. 21. NEW IDEIA LEARNING DISABILITIES DEFINITIONS:Statutory Definition: (Sec. 602, Definitions)(30) SPECIFIC LEARNING DISABILITY- (A) IN GENERAL- The term `specific learning disability means a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. (B) DISORDERS INCLUDED- Such term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. (C) DISORDERS NOT INCLUDED- Such term does not include a learning problem that is primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.Proposed Regulations: (not yet finalized – currently in public comment session)§ 300.307 Specific learning disabilities.(a) General. A State must adopt, consistent with § 300.309, criteria for determining whether achild has a specific learning disability as defined in § 300.8. In addition, the criteria adopted bythe State— (1) May prohibit the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability as defined in § 300.8; (2) May not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability as defined in § 300.8; (3) Must permit the use of a process that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures described in § 300.304; and (4) May permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability as defined in § 300.8.(b) Consistency with State criteria. A public agency must use the State criteria adopted pursuantto paragraph (a) of this section in determining whether a child has a specific learning disability.(Authority: 20 U.S.C. 1221e–3; 1401(30); 1414(b)(6)) 19
  22. 22. § 300.308 Group members.The determination of whether a child suspected of having a specific learning disability is a childwith a disability, as defined in § 300.8, is made by the child’s parents and the group describedunder § 300.306(a)(1) that—(a) Is collectively qualified to— (1) Conduct, as appropriate, individual diagnostic assessments in the areas of speech and language, academic achievement, intellectual development, and social-emotional development; (2) Interpret assessment and intervention data, and apply critical analysis to those data; (3) Develop appropriate educational and transitional recommendations based on the assessment data; and (4) Deliver, and monitor specifically designed instruction and services to meet the needs of a child with a specific learning disability; and(b) Includes— (1) A special education teacher; (2) (i) The child’s general education teacher; or (ii) If the child does not have a general education teacher, a general education teacher qualified to teach a child of the child’s age; and(c) Other professionals, if appropriate, such as a school psychologist, reading teacher, oreducational therapist. (Authority: 20 U.S.C. 1221e–3; 1401(30); 1414(b)(6))§ 300.309 Determining the existence of a specific learning disability.(a) The group described in § 300.308 may determine that a child has a specific learning disabilityif— (1) The child does not achieve commensurate with the child’s age in one or more of the following areas, when provided with learning experiences appropriate for the child’s age: (i) Oral expression. (ii) Listening comprehension. (iii) Written expression. (iv) Basic reading skill. (v) Reading fluency skills. (vi) Reading comprehension. (vii) Mathematics calculation. (viii) Mathematics problem solving. 20
  23. 23. (2)(i) The child fails to achieve a rate of learning to make sufficient progress to meet State-approved results in one or more of the areas identified in paragraph (a)(1) of this section when assessed with a response to scientific, research-based intervention process; or (ii) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, or a pattern of strengths and weaknesses in performance, achievement, or both, relative to intellectual development, that is determined by the team to be relevant to the identification of a specific learning disability, using appropriate assessments consistent with §§ 300.304 and 300.305; and (3) The group determines that its findings under paragraph (a)(1) and (2) of this section are not primarily the result of— (i) A visual, hearing, or motor disability; (ii) Mental retardation; (iii) Emotional disturbance; (iv) Cultural factors; or (v) Environmental or economic disadvantage.(b) For a child suspected of having a specific learning disability, the group must consider, as partof the evaluation described in §§ 300.304 through 300.306, data that demonstrates that— (1) Prior to, or as a part of the referral process, the child was provided appropriate high- quality, research-based instruction in regular education settings, consistent with section 1111(b)(8)(D) and (E) of the ESEA, including that the instruction was delivered by qualified personnel; and (2) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, was provided to the child’s parents.(c) If the child has not made adequate progress after an appropriate period of time, during whichthe conditions in paragraphs (b)(1) and (2) of this section have been implemented, a referral foran evaluation to determine if the child needs special education and related services must bemade.(d) Once the child is referred for an evaluation to determine if the child needs special educationand related services, the timelines described in §§ 300.301 and 300.303 must be adhered to,unless extended by mutual written agreement of the child’s parents and a group of qualifiedprofessionals, as described in § 300.308. (Authority: 20 U.S.C. 1221e–3; 1401(30); 1414(b)(6)) 21
  24. 24. THE 2004 IDEIA Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062(847) 564-8662 (847) 564-8419 FAXWebsite: www.whittedclearylaw.com 22
  25. 25. IDEIA RE-AUTHORIZATION The new Individuals with Disabilities Education Improvement Act of2004 (“IDEIA 2004”) was signed into law by the President on December 3,2004. The Act went into effect on July 1, 2005, with the exception of a fewsections 2 which went into effect immediately. A full version of the IDEA,with changes highlighted, can be found at http://www.copaa.net/IDEA/IDEA97-04COMP.pdf. To date, no action has been taken by the Illinois State Board ofEducation in response to the reauthorization. However, Illinois legislators aregearing up for taking action and have proposed House Bill 160 (which can befound at www.ilga.gov), which attempts to amend the School Code byprohibiting ISBE from establishing any rules and regulations which conflictwith or exceed the rules and regulations 3 established by the U.S. Departmentof Education in IDEIA 2004. Until the Federal rules, currently in draft form during this commentsession, are finalized the full impact upon parents and districts is unknown. Asummary of the most significant changes in IDEIA follows.2 These sections are highlighted in the following pages.3 The rules and regulations to accompany the IDEIA 2004 have been published in draft form and are in public comment session. Word from Washington is that they will be finalized and published sometime in December 2005, however when the 1997 reauthorization of IDEA occurred, this process took nearly two years. 23
  26. 26. SUMMARY OF IDEIA 2004 CHANGESSection Change ImpactPurpose: (20 U.S.C. 1400 § 601) Adds language “to the maximum extent Congress has changed the standard for possible” in several sections of the special education students from merely purpose of IDEIA. providing “appropriate” services to providing “maximum” services. However, it should be noted that states are still only mandated to provide the current standard of “Free and Appropriate Public Education” (“FAPE”)Definitions: (20 U.SC. 1400 § 602) Adds language to include foster parents Releasing information to “other relatives”“Parent” and “or other relative with whom the of a child could be a disaster under current child lives or who is legally responsible state confidentiality laws. Districts will for the child’s welfare…” have to be diligent to ensure the information they are releasing to “other family members” who claim to be responsible for the child are in fact within all federal and state exceptions.Pilot Paperwork Reduction Project: Adds text to allow the U.S. Department Should Illinois be one of the 15 states(20 U.SC. 1400 § 609) of Education to “grant waivers of involved in this pilot program, it is statutory requirements of, or regulatory difficult to imagine how it will be possible requirements relating to, Part B for a to decrease the amount of paperwork period of time not to exceed 4 years related to special education while still with respect to not more than 15 states preserving procedural safeguards. based on proposal submitted by State to reduce excessive paperwork and non- instructional time burdens that do not assist in improving educational and functional results for children with disabilities.” 24
  27. 27. Section Change Impact Related Services: Changed previous text of “school health The exclusion of “a medical device that is (20 U.SC. 1400 § 602(26)) services” to “school nurse services.” surgically implanted” is thought to relate Also added “interpreting services,” and to Cochlear implants, which is a field of specifically excluded “a medical device special education litigation that has that is surgically implanted, or the increased significantly in the last few replacement of such a device.” years. Much of the current case law requires school districts to pay for the mapping 4 of a child’s Cochlear implant, not the implantation itself. Child Find Requirements: Adds new language stating that districts This new language regarding child find 20 U.SC. 1400 § 612(a)(1)(C) are now required to provide child find requirements suggests that local school servcies for homeless children and districts have to pay for some services for children who are wards of the state. private school children in their area, despite the fact that the child’s parents are Also provides that districts are now not residents of that school district. responsible for “child find” Current law in Illinois states that the local requirements for all private schools in school district of a child in a private their geographic area, and that they placement does have to serve these must meet with private school children, however the school district in employees “throughout the year” to which their parents reside has to pay for discuss with these representatives those servcies. It will be interesting to see “types of services” “how such services how this affects current residency law. will be appropriated if funds are insufficient to serve all children,” and “how and when these decisions will be made.” (continued on next page)4 The “mapping” of a cochlear implant is a procedure often conducted by a child’s audiologist which sets the sound parameters on each electrode at the appropriate, comfortable levels as indicated by the recipient. This procedure is required to be performed for children with Cochlear implants at least annually, with more visits needed immediately after implantation. 25
  28. 28. Section Change Impact Child Find Requirements: Districts also are required to submit a See previous page 20 U.SC. 1400 § 612(a)(1)(C) form to ISBE 5 that the private school (cont’d) administrator has signed indicating their child find requirements have been satisfied. If a private school is not satisfied with the services the local school district is offering, they are allowed to file a complaint to the State educational agency. Early Intervening Services: States that school districts can take up to 20 U.SC. 1400 § 613(a)(9) 15% (as opposed to the 5% allowed previously) of Part B special education funds “to develop and implement coordinated, early intervening services” for children K-12 who have not been identified for services but who need additional academic and behavioral support to succeed in a general education environment. Also states these funds can be used for professional development, educational and behavioral evaluations, services and supports.5 Despite Congress’ statement that one of the goals for the 2004 reauthorization was to decrease paperwork requirements for districts, this is the first of several new paperwork provisions for districts. A list of a few of these new paperwork provisions is attached. 26
  29. 29. Section Change Impact Teacher Certification: States that all teachers must meet the While most school districts are already in 20 U.S.C. 1400 § 612(a)(14)(C) “highly qualified” requirements of the the process of changing their teacher No Child Left Behind Act (“NCLB”) 6 requirements due to NCLB, this most and must hold at least a bachelor’s significantly impacts school districts who degree. have opted out of NCLB. This now means that even those districts must comply with NCLB requirements for special education teachers. Mandatory Medication: New language has been added which Parents of children with ADHD who 20 U.SC. 1400 § 612(a)(25) specifically prohibits school districts choose not to medicate cannot be treated from refusing educational services to differently. parents who choose not to medicate their children. Timeline for Initial Case Study The new section states that school Illinois rules state that school districts Evaluation: (“CSE”) districts must complete CSE’s within 60 have 60 school days to complete CSEs. 20 U.SC. 1400 § 614(a)(1)(C)(i)(I) calendar days, however this section This should apply, however many school does provide that states may utilize their districts are taking a conservative own timelines if they have a timeline. approach and doing CSEs in 60 calendar days.6 The requirements in Illinois to be considered “highly qualified” include for teachers to have a valid Illinois teaching certificate in the area of specialty (elementary, secondary or special education) and meet one of the following options: 1) pass the elementary/middle grades test or the content-area test for the area of teaching responsibility, 2) have a major or coursework “equivalent to a major,” 3) have a master’s degree or other advanced degree/credential, 4) be certified by the National Bard of for Professional Teaching Standards, and 5) Have an endorsement or its coursework equivalent that is sufficient to meet the Illinios maximum requirements for the area of teaching responsibility, have teaching experience in the area and have engaged in relevant continuing professional education. 27
  30. 30. Section Change Impact Reevaluations: New language has been added to the 20 U.SC. 1400 § 614(a)(2)(B) effect that reevaulations cannot be performed more than once a year unless the school and parent agree otherwise. Eligibility Determination: Language added states that children are This additional language suggests 20 U.SC. 1400 § 614(a)(5) not to be found eligible for special children can no longer be found eligible education services if the determinate for a Learning Disability if they have not factor is a lack of appropriate previously specifically received reading instruction in the essential components instruction based on phonics. This is the of reading instruction (as defined in the first time that the IDEA has ever NCLB 7 ). identified (and required school districts to use) specific teaching methodologies Eligibility Termination: New language includes a provision that Many comments have expressed that this 20 U.SC. 1400 § 614(c)(5)(B)(ii) school districts have to provide “a requirement may be troublesome. The summary of the child’s academic proposed federal regulations so far achievement and functional provide no guidance as to the form or performance, including content of this summary and many school recommendations on how to assist the districts are struggling over what child in meeting… postsecondary information should be contained. goals,” upon discontinuing special education services for a child. (including graduation and aging out of the sped system).7 The “essential components of reading instruction” as defined in NCLB include: a) phonemic awareness, b) phonics; c) vocabulary developments, d) reading fluency, including oral reading skills, and e) reading comprehension strategies. 28
  31. 31. Section Change ImpactSpecific Learning Disabilities A school district is not required to take This language dispels the belief that justEligibility: into consideration whether the child has because a child has a “severe discrepancy”20 U.SC. 1400 § 614(b)(6)(A) a severe discrepancy between between IQ scores in certain areas they achievement and intellectual ability in are automatically found eligible for oral expression, listening special education services under the LD comprehension, written expression, category. Likewise, districts may no basic reading skill, reading longer restrict themselves to a discrepancy comprehension, mathematical analysis alone, which is what they should calculation or mathematical reasoning. have been doing all along anyway. Instead, a school district “may” use a process that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures.IEPs: Adds text to allow 15 states (which While this initially was shocking to parentMulti-Year IEP Determination Pilot have yet to be identified) to develop attorneys and advocates, the languageProgram: “multi-year” IEPs (every three years) included in this section still requires(20 U.S.C. 1400 614(d)(5)(A) for certain students as opposed to the parental consent before implementing a current annual reviews required by law. “multi-year” IEP. In addition, annual States must submit a proposal to the goals are still required for the IEP and “an federal government in order to be annual review must be conducted to considered part of this program. determine the child’s progress toward the annual goals.” If the child is not progressing toward the goals, then the IEP must be redrafted. The IEP must also be reviewed at the request of a parent. As such, it appears that this provision will have little to no impact on the current standards for IEPs, in districts where parents are adequately informed. 29
  32. 32. Section Change ImpactIEPs: This section omits the requirements for It will be more difficult for parents andShort term objectives: short-term goals, and instead states that districts to prove definitively whether the20 U.SC. 1400 § 614(d)(1)(A)(i)(I)(cc) IEPs must contain “a statement of child is meeting annual goals, as measurable annual goals, including “measurable objectives” are no longer academic and functional goals…” required. Measurable yearly goals are Districts may use benchmarks or now required. objectives however, objectives are still necessary for those students who are receiving alternative assessments.IEPs: New language discontinues the need for While most Illinois elementary and highStudent progress: quarterly progress reports, and instead schools do issue progress reports and20 U.SC. 1400 § 614(d)(1)(A)(i)(III) only issues a suggestion for the report cards more than once a year, a progress reports to be issued district could potentially only have an “concurrent with the issuance of report obligation to track a special education cards.” child’s progress toward goals annually. If more frequency is desired, it appears it will be the responsibility of the parents to request that it be written into the IEP that the district provide more frequent reports. 30
  33. 33. Section Change ImpactIEPs: The new language pushes the This new language significantly increasesTransition Services: requirement for transition services the requirements for transition planning,20 U.SC. 1400 § 614(d)(1)(A)(i)(VIII) planning from 14 to “beginning not but raises the age when the District has to later than the first IEP to be in effect begin the process. The current rules in when the child is 16…” It also requires Illinois still require the process to begin at the team to draft “appropriate age 14. Many school districts are measurable postsecondary goals based continuing to use age 14 as a conservative upon age appropriate transition approach. assessments related to training, education, employment, and, where appropriate independent livings skills.” It also must list “the transition services (including courses of study) needed to assist the child in reaching those goals.”IEPs New language states that if a required This might potentially mean that districtsIEP Attendance and Excusal: IEP team member’s “area of curriculum could have only one representative (the20 U.SC. 1400 § 614(d)(1)(C)(i), (ii) or related services is not being LEA representative) present at an IEPand (iii) modified or discussed in the meeting” meeting as long as summary reports are and if the parent and district agree the provided by all other participants. attendance of a mandatory IEP Remember, an advance report by the participant is not necessary, then that absent participant will be required if the member does not have to participate. person’s area of curriculum or related Requires written agreement by the services is at issue and written parent parent. agreement must always be obtained prior to that individual’s excusal. In addition, even if the required team member’s “area of curriculum or related services” is being modified or discussed, that person may be excused “in whole or in part” from attending an IEP meeting if: 1) a (continued on next page) 31
  34. 34. Section Change Impact parent agrees in writing, and 2) “the member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to that meeting.”Procedural Safeguards: This new language now assigns a Although it was never specificallyStatute of Limitations: uniform statute of limitations (two included within Illinois’ rules and20 U.SC. 1400 § 615(f)(3)(D) years before the date the parents or regulations, case law has affirmed that the public agency “knew or should have statute of limitations is generally a two- known”) regarding IDEA cases. year period, so not a real change for Illinois.Due Process Complaint Notice and New language indicates that after a When IDEA was originally created, theAmended Complaint Notice: party files for due process, the party due process provision was created in order20 U.SC. 1400 § 615(f)(3)(B), (D) and receiving the request has 15 days to for parents to be able to represent their(E) object to the sufficiency of the request. own children at hearing, so they did notand 20 U.SC. 1400 § 615(o) If the receiving party does not object to have to pay for lawyers. With the addition the request, then it is “shall be deemed of this language, it could be argued that a sufficient.” If the receiving party does hearing officer could dismiss a due object to the request, then the hearing process complaint on its face without an officer assigned to the case will opportunity for the parent to correct the determine if the request meets legal complaint. While parents are allowed to requirements. file a separate complaint with new issues listed, they might not be savvy enough to This provision also states that the party properly word their complaint and could filing the due process request may not be left with no remedy. One impression of raise additional issues other than those this provision is that it could lead to “full listed in the request, at hearing, unless employment for lawyers.” the other party agrees. ….. continued on next page) 32
  35. 35. Section Change Impact A parent may file an amended due process complaint only in two circumstances: 1) if the other party consents in writing, and 2) if the hearing officer grants permission. However, another new provision This takes from one and gives to the other indicates that nothing precludes parents and raises other issues regarding from filing a separate due process consolidation of claims, tolling of complaint for issues not listed on timeline, etc previous complaints.Response to Due Process Complaint: Another provision has been added that Important new ten-day timeline! It is20 U.SC. 1400 § 615(c)(2)(B)(ii) once a party has received a due process unclear whether an IEP which addresses request, they are required to answer or the issues in the complaint may suffice as respond to the specific issues listed in a “response.” that request within 10 days. ISBE has issued a guidance memo which contains some information regarding the content of this notice. If a hearing officer has been assigned, he or she must also receive a copy of the response. If a hearing officer has yet to be assigned, then it must also be sent to ISBE. 33
  36. 36. Section Change ImpactResolution Session: After a district receives a request for It is believed that this provision was20 U.SC. 1400 § 615(f)(1)(B)(ii) due process, it is mandated to convene a added to encourage resolution without the meeting, called a “resolution session”, need for involvement of attorneys or to try to resolve the complaint within 15 hearing officers. days of receiving the parent’s complaint, unless both parties agree to This provision also brings into question waive this meeting. The section further whether parents will be able to bring states that if a parent does not attend nonlegal “advocates” with them (as the meeting with an attorney, then opposed to attorneys) without the district the district’s attorney cannot be being able to also be represented. present at the meeting. This is not intended to be an IEP meeting (although it arguably may) but must include the parents and members of the IEP team that have “knowledge of the request.” (continued on next page) 34
  37. 37. Section Change ImpactResolution Session: (cont’d) If both parties agree to hold the meeting It is also unclear when the deadlines for20 U.SC. 1400 § 615(f)(1)(B)(ii) and resolve the situation amicably, then due process resolution begin. Some this IEP will be considered a legally attorneys believe this section means the binding agreement between both countdown for resolution of due process parties. However, the agreement can be does not begin until after the “resolution voided by either party within three days session.” However, others will find ways of execution. to argue that the timeline for resolution of due process is triggered when the request If both parties have not reached a is initially filed and is not stayed by any settlement within 30 days after the due mediation or attempt to resolve the process request was filed, then the complaint. hearing timelines commence. Currently, ISBE has taken the position that the 45 day due process timeline does not start until the 390 day “resolution session” timeline is exhausted, but a few Illinois hearing officers are already disagreeing. This, different hearings may use different timelines unless a court determines precedent.Attorneys Fees: A new provision has been added stating While this section first appeared shocking20 U.SC. 1400 § 615(i)(3)(D)(ii) that a court may award attorney’s fees to most parents, it is believed that to prove to a district “against the attorney of a a case is “frivolous, unreasonable or parent” who: 1) files a complaint that is without foundation” will (as is now the frivolous, unreasonable or without case in all litigation) be extremely foundation and 2) who continues to difficult. However, if a school district litigate after the litigation clearly pursues a parent under this section, even became frivolous, unreasonable, or if the parent wins, the resources utilized to without foundation. defend the claim are unduly burdensome (continued on next page) to most families. 35
  38. 38. Section Change ImpactAttorneys Fees: (cont’d) A district can also be awarded20 U.SC. 1400 § 615(i)(3)(D)(ii) attorney’s fees from a parent or a parent’s attorney if the complaint was brought for “any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” The provision also states that “at the discretion of the state” attorney’s fees can be awarded for mediation, however they cannot be awarded for a lawyer’s attendance at a resolution session.Discipline: This provision states that a special20 U.SC. 1400 § 615(k)(1)(D) education child who is removed from his or her educational placement for more than 10 school days must be provided FAPE and must also receive a functional behavioral assessment and behavior intervention services and modifications. 36
  39. 39. Section Change ImpactManifestation Determination: This provision poses new questions the It is believed the amended language20 U.SC. 1400 § 615(k)(1)(E) IEP team must consider when makes it easier for a school district to determining whether a child’s behavior determine that a child’s behavior was not was or was not a manifestation of their a manifestation of his/her disability. disability: 1) If the conduct in question was caused by or had a direct and substantial relationship, to the child’s disability, or 2) if the conduct in question was the direct result of the school district’s failure to implement the IEP. (The previous questions were: 1) If a child’s disability impaired the ability of the child to understand the impact and the consequences of the behavior, and 2) if the child’s disability impaired the ability of the child to control the behavior)Determination that Behavior was a This is a new section and states that if a This new section offers parents theManifestation: district does find a child’s behavior to guarantee that if their child is suspended20 U.SC. 1400 § 615(k)(1)(F) be related to his or her disability, then it for more than 10 days in a year, that a is required to: 1) create and FBA and FBA and BIP will be drafted. BIP for the child (if one was not already completed), 2) revise a child’s FBA and BIP if one was already completed and 3) return the child to his or her previous educational placement. 37
  40. 40. Section Change Impact45-Day Removal: New language specifies that a child’s Taking into consideration that a typical20 U.SC. 1400 § 615(k)(1)(G) and removal may now be implemented for school year is approximately 180 school(k)(1)(H)(2) 45 school days, as opposed to 45 days, removal for 45 days constitutes calendar days. about 25 percent of the school year. A third reason for removal of a child There will also be considerable debate has also been added, which is for regarding the language “serious bodily “inflict[ing] serious bodily injury upon injury.” The section states that the another person while at school, on definition is defined as it is in the U.S. school premises, or at a school function criminal code (18 USC §1365(3)(h), under the jurisdiction of the school which defines it as: district.” “(A) a substantial risk of death; (B) extreme physical pain; The new code has also changed the (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the parental appeals process for these 45- function of a bodily member, organ, or day removals. The new language now mental faculty.” states the child’s placement will remain at the alternative placement during the From this definition, it appears that it will pendency of the dispute. In addition, the be difficult for school districts to define a timeline for completion of an expedited child’s actions as “serious bodily injury,” due process hearing to overturn the however case law will have to determine decision to remove the child has been what is considered “serious.” extended. Formerly, the requirement was for the hearing and opinion to be The new timeline set for “expedited” due completed within 15 calendar days of a process hearings is now more in favor of hearing being requested by the parents. districts, since 30 school days translates to The new language changes this from 15 about 45 calendar days. calendar to 30 school days. 38
  41. 41. Section Change ImpactProtections for Children Not Yet New language states that a school New language has significantly restrictedEligible for Special Education and district is deemed to have “knowledge” what is considered “reasonable notice” toRelated Services: that a child has a disability if, before the the school district that a child may have20 U.SC. 1400 § 615(k)(5)(C) behavior occurred: 1) the parent of a had a disability. Former language would child expressed concern, in writing, to allow for a child’s “behavior or the district, 2) the parent requested a performance” to be sufficient notice, CSE, or 3) a teacher of the child or however the new language places added other school district personnel burden on the parents of a child who may expressed specific concerns about a have a disability to be well informed of pattern of behavior to the director of their rights and assertively insure that special education or “other supervisory concerns are brought to the school district personnel.” prior to the child displaying behavior. Training is needed in this area.Preschool Grants: The new language now allows for states If Illinois chooses to create such a policy,20 U.SC. 1400 § 635(c) to have the option of creating a policy then parents who choose these services which would allow parents to choose to will not be afforded the protections continue early intervention services offered under IDEA for special education “until such children… enter students until they are placed into kindergarten,” as opposed to having the kindergarten. responsibility rest solely on the school district upon age three. 39
  42. 42. NEW PAPERWORK REQUIREMENTS FOR SCHOOL DISTRICTS, PARENTS (as required by IDEIA 2004)1. Letter and/or form indicating that the district’s Child Find requirements have been met satisfactorily in relation to local private schools.2. Annual report re: early intervening services, including the number of children served and the number of students who subsequently receive special education and related services during the preceding 2-year period.3. Summary of child’s academic achievement and functional performance, including recommendations on how to assist child in meeting postsecondary goals, upon discontinuing special education services for a child.4. Parent signature required if both the district and the parent agree that a mandatory IEP attendee does not have to attend a meeting. (Waiver form – attached)5. Parent signature required if both parties decide that a re-evaluation is not necessary. (Waiver form – attached)6. Parent signature required if both parties agree that an annual review is not required. (Waiver form – attached)7. Notice to a hearing officer that a due process complaint did not meet the legal requirements.8. Response to due process complaint. (Cannot be form letter – must submit in 10 days)9. Paperwork pursuant to the convening of resolution sessions – sign-in sheet, documentation of issues and responses and written agreement (if reached). 40

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