What is new:Special Education review for teachers
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    What is new:Special Education review for teachers What is new:Special Education review for teachers Document Transcript

    • THE 15TH ANNUAL ALLERTONRETREAT FOR EDUCATORS OF STUDENTS WITH BEHAVIORAL DISORDERSHIGHLY QUALIFIED AND MORE: WHAT IS NEWFROM WASHINGTON AND SPRINGFIELD SEPTEMBER 24, 2005 1:15-2:30 P.M.
    • AGENDAI. Introduction and Overview A. What I Will Cover B. Explanation of MaterialsII. Major Changes Resulting From New IDEIA A. Introductory Items a. Paperwork Reduction? i. Pilot Paperwork Reduction Act ii. Provision of Procedural Safeguards Notice b. Child Find Requirements/ Private Schools c. Integration of NCLB “Highly Qualified Teacher” Requirements B. Evaluations/Reevaluations a. Timelines for Evaluations/Reevaluations b. Overriding Lack of Consent for Initial Evaluations/ Initial Placements c. Eligibility Termination/Children Graduating/Aging Out of System – New Requirements d. LD Eligibility C. IEPs a. Multi-Year IEPs b. Reporting Progress i. Present Levels of Performance ii. Writing Goals and (maybe) Objectives iii. Reporting Progress on Goals For Parents c. Transition Services d. Alternative Methods For IEP Meetings i. Meetings Without Required Members ii. Video Conference/Teleconference iii. Making Changes Outside of an IEP Meeting D. Changes in Due Process Procedures a. Statute of Limitations b. Due Process Complaint Notice c. Response to Due Process Complaint d. Convening Resolution Sessions e. Attorneys Fees E. Discipline a. Manifestation Determinations b. Automatic 45-Day Removals c. Protections For Children Not Yet Eligible III. Update on New Special Education Case Law
    • TABLE OF CONTENTSName of Handout Page #1. NEW IDEIA …………………………………………….. 1 - 182. RECENT SPED DECISIONS ..........................................19 - 24
    • THE 2004 IDEIA The new Individuals with Disabilities Education ImprovementAct of 2004 (“IDEIA 2004”) was signed into law by the President onDecember 3, 2004. The Act went into effect on July 1, 2005, with theexception of a few sections, which went into effect immediately. A fullversion 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. A draft version of theFederal regulations has been issued and is currently in its commentsession. Final regulations are expected no earlier than December, 2005. A summary of the most significant changes in the IDEIA iscontained in this handout. Lara A. Cleary WHITTED & CLEARY LLC 3000 Dundee Road Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8661 www.whittedclearylaw.com Lcleary@Whittedclearylaw.com 1
    • 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 special possible” in several sections of the purpose education students from merely providing of IDEIA. “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” of“Parent” and “or other relative with whom the child a child could be a disaster under current state lives or who is legally responsible for the confidentiality laws. Districts will have to be child’s welfare…” 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 of Should Illinois be one of the 15 states(20 U.SC. 1400 § 609) Education to “grant waivers of statutory involved in this pilot program, it is difficult to requirements of, or regulatory requirements imagine how it will be possible to decrease relating to, Part B for a period of time not the amount of paperwork related to special to exceed 4 years with respect to not more education while still preserving procedural than 15 states based on proposal submitted safeguards. by State to reduce excessive paperwork and Likely, the only true “paperwork reduction” is non-instructional time burdens that do not the change in when a district must provide the assist in improving educational and written notification of procedural safeguards functional results for children with to parents - which is upon the initial referral disabilities.” for sped., one time per year, upon the first occurrence of a due process request filing, and upon the request of the parent. 2
    • 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.” Also surgically implanted” is thought to relate to added “interpreting services,” and Cochlear implants, which is a field of special specifically excluded “a medical device education litigation that has increased that is surgically implanted, or the significantly in the last few years. Much of replacement of such a device.” the current case law requires school districts to pay for the mapping 1 of a child’s Cochlear implant, not the implantation itself. Child Find Requirements: Adds new language stating that districts are This new language regarding child find 20 U.SC. 1400 § 612(a)(1)(C) now required to provide child find servcies requirements suggests that local school for homeless children and children who are districts have to pay for some services for wards of the state. private school children in their area, despite the fact that the child’s parents are not Also provides that districts are now residents of that school district. Current law responsible for “child find” requirements in Illinois states that the local school district for all private schools in their geographic of a child in a private placement does have to area, and that they must meet with private serve these children, however the school school employees “throughout the year” to district in which their parents reside has to discuss with these representatives “types of pay for those servcies. It will be interesting to services” “how such services will be see how this affects current residency law. appropriated if funds are insufficient to serve all children,” and “how and when these decisions will be made.” (continued on next page)1 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. 3
    • Section Change Impact Child Find Requirements: Districts also are required to submit a form See previous page 20 U.SC. 1400 § 612(a)(1)(C) to ISBE 2 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.2 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. 4
    • Section Change Impact Teacher Certification: States that all teachers must meet the While most school districts are already in the 20 U.S.C. 1400 § 612(a)(14)(C) “highly qualified” requirements of the No process of changing their teacher Child Left Behind Act (“NCLB”) 3 and requirements due to NCLB, this most must hold at least a bachelor’s degree. significantly impacts school districts who 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 choose 20 U.SC. 1400 § 612(a)(25) specifically prohibits school districts from not to medicate cannot be treated differently. refusing educational services to parents who choose not to medicate their children. Timeline for Initial Case Study Evaluation: The new section states that school districts Illinois rules state that school districts have 60 (“CSE”) must complete CSE’s within 60 calendar school days to complete CSEs. This should 20 U.SC. 1400 § 614(a)(1)(C)(i)(I) days, however this section does provide apply, however many school districts are that states may utilize their own timelines if taking a conservative approach and doing they have a timeline. CSEs in 60 calendar days.3 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. 5
    • Section Change Impact Reevaluations: New language has been added to the effect 20 U.SC. 1400 § 614(a)(2)(B) 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 not This additional language suggests children can 20 U.SC. 1400 § 614(a)(5) to be found eligible for special education no longer be found eligible for a Learning services if the determinate factor is a lack Disability if they have not previously specifically of appropriate instruction in the essential received reading instruction based on phonics. components of reading instruction (as This is the first time that the IDEA has ever defined in the NCLB 4 ). 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 proposed summary of the child’s academic federal regulations so far provide no guidance as achievement and functional performance, to the form or content of this summary and many including recommendations on how to school districts are struggling over what assist the 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).4 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. 6
    • Section Change ImpactSpecific Learning Disabilities Eligibility: A school district is not required to take into This language dispels the belief that just because20 U.SC. 1400 § 614(b)(6)(A) consideration whether the child has a a child has a “severe discrepancy” between IQ severe discrepancy between achievement scores in certain areas they are automatically and intellectual ability in oral expression, found eligible for special education services listening comprehension, written under the LD category. The proposed Federal expression, basic reading skill, reading regulations appear to establish more specific comprehension, mathematical calculation criteria for LD eligibility, which may be helpful if or mathematical reasoning. Instead, a these criteria remain in the final regulations. 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 have While this initially was shocking to parentMulti-Year IEP Determination Pilot yet to be identified) to develop “multi- attorneys and advocates, the language included inProgram: year” IEPs (every three years) for certain this section still requires parental consent before(20 U.S.C. 1400 614(d)(5)(A) students as opposed to the current annual implementing a “multi-year” IEP. In addition, reviews required by law. States must annual goals are still required for the IEP and “an submit a proposal to the federal annual review must be conducted to determine government in order to be considered part the child’s progress toward the annual goals.” If of this program. 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. 7
    • Section Change ImpactIEPs: This section omits the requirements for It will be more difficult for parents and districtsShort term objectives: short-term goals, and instead states that to prove definitively whether the child is meeting20 U.SC. 1400 § 614(d)(1)(A)(i)(I)(cc) IEPs must contain “a statement of annual goals, as “measurable objectives” are no measurable annual goals, including longer required. Measurable yearly goals are academic and functional goals…” now required. Districts may use benchmarks or objectives however, objectives are still necessary for Also note that the present levels of performance those students who are receiving alternative statement is now called the present levels of assessments. “academic achievement and functional performance.” Note that neither the new statute nor the proposed regulations provide a definition of “functional performance.”IEPs: New language discontinues the need for While most Illinois elementary and high schoolsStudent progress: quarterly progress reports, and instead only do issue progress reports and report cards more20 U.SC. 1400 § 614(d)(1)(A)(i)(III) issues a suggestion for the progress reports than once a year, a district could potentially only to be issued “concurrent with the issuance have an obligation to track a special education of report 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. 8
    • Section Change ImpactIEPs: The new language pushes the requirement This new language significantly increases theTransition Services: for transition services planning from 14 to requirements for transition planning, but raises20 U.SC. 1400 § 614(d)(1)(A)(i)(VIII) “beginning not later than the first IEP to be the age when the District has to begin the in effect when the child is 16…” It also process. The current rules in Illinois still require requires the team to draft “appropriate the process to begin at age 14. Many school measurable postsecondary goals based districts are continuing to use age 14 as a upon age appropriate transition conservative 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 IEP This might potentially mean that districts couldIEP Attendance and Excusal: team member’s “area of curriculum or have only one representative (the LEA20 U.SC. 1400 § 614(d)(1)(C)(i), (ii) and related services is not being modified or representative) present at an IEP meeting as long(iii) discussed in the meeting” and if the parent as summary reports are provided by all other and district agree the attendance of a participants. Remember, an advance report by the mandatory IEP participant is not necessary, absent participant will be required if the persons’s then that member does not have to area of curriculum or related services is at issue, participate. Requires written agreement by and written parent agreement must always be the parent. obtained prior to that an individual’s excusal. Districts must be careful about excusing a regular In addition, even if the required team member’s education teacher’s participation, as the new “area of curriculum or related services” is being IDEIA has strengthened the role of the regular modified or discussed, that person may be education teacher at IEP meetings – requiring that excused “in whole or in part” from attending an teacher to help “determine the appropriate IEP meeting if: 1) a parent agrees in writing, and behavior interventions and strategies, and 2) “the member submits, in writing to the parent supplemental aids and services that are necessary and the IEP team, input into the development of for their classrooms.” (1414)(d)(3)(C). the IEP prior to that meeting.” 9
    • Section Change ImpactProcedural Safeguards: This new language now assigns a uniform Although it was never specifically includedStatute of Limitations: statute of limitations (two years before the within Illinois’ rules and regulations, case law20 U.SC. 1400 § 615(f)(3)(D) date the parents or public agency “knew or has affirmed that the statute of limitations is should have known”) regarding IDEA generally a two-year period, so not a real change cases. for Illinois.Due Process Complaint Notice and New language indicates that after a party When IDEA was originally created, the dueAmended Complaint Notice: files for due process, the party receiving the process provision was created in order for parents20 U.SC. 1400 § 615(f)(3)(B), (D) and (E) request has 15 days to object to the to be able to represent their own children atand 20 U.SC. 1400 § 615(o) sufficiency of the request. If the receiving hearing, so they did not have to pay for lawyers. party does not object to the request, then it With the addition of this language, it could be is “shall be deemed sufficient.” If the argued that a hearing officer could dismiss a due receiving party does object to the request, process complaint on its face without an then the hearing officer assigned to the case opportunity for the parent to correct the will determine if the request meets legal complaint. While parents are allowed to file a requirements. separate complaint with new issues listed, they might not be savvy enough to properly word their This provision also states that the party complaint and could be left with no remedy. One filing the due process request may not raise impression of this provision is that it could lead additional issues other than those listed in to “full employment for lawyers.” the request, at hearing, unless the other party agrees. The complaint notice (due process request) must A parent may file an amended due process contain the child’s name and address, the school complaint only in two circumstances: 1) if the child attends, a description of the problem the other party consents in writing, or 2) if alleged, including the facts of the situation, and a the hearing officer grants permission. proposed resolution. A parent filing the request must send it to the school district superintendent However, another new provision indicates and it is then the district’s responsibility to that nothing precludes parents from filing a forward the request to the ISBE within 5 days for separate due process complaint for issues the appointment of a hearing officer. not listed on previous complaints. 10
    • Section Change ImpactResponse to Due Process Complaint: Another provision has been added that Important new ten-day timeline! It is unclear20 U.SC. 1400 § 615(c)(2)(B)(ii) once a party has received a due process whether an IEP which addresses the issues in request, they are required to answer or the complaint may suffice as a “response.” respond to the specific issues listed in that request within 10 days. ISBE has issued a guidance memo, which contains some information regarding the content of this notice. This memo is available on the ISBE website. 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.Resolution Session: After a district receives a request for due It is believed that this provision was added to20 U.SC. 1400 § 615(f)(1)(B)(ii) process, it is mandated to convene a encourage resolution without the need for meeting, called a “resolution session”, to involvement of attorneys or hearing officers. try to resolve the complaint within 15 days of receiving the parent’s complaint, unless This provision also brings into question both parties agree to waive this meeting. whether parents will be able to bring nonlegal The section further states that if a parent “advocates” with them (as opposed to does not attend the meeting with an attorneys) without the district being able to attorney, then the district’s attorney also be represented. cannot be present at the meeting. This is not intended to be an IEP meeting The parties may agree to use the state (although it arguably may) but must mediation procedures in the place of a include the parents, a district resolution session. representative, and members of the IEP team that have “knowledge of the request.” (continued on next page) 11
    • Section Change ImpactResolution Session: (cont’d) If both parties agree to hold the meeting Currently, ISBE has taken the position that20 U.SC. 1400 § 615(f)(1)(B)(ii) and resolve the situation amicably, then the the 45 day due process timeline does not start agreement generated at this meeting will be until the 30 day “resolution session” timeline considered a legally binding agreement is exhausted, but a few Illinois hearing between both parties. However, the officers are already disagreeing. Thus, agreement can be voided by either party different hearings may utilize different within three days of execution. timelines unless a court provides precedent. If both parties have not reached a settlement within 30 days after the due process request was filed, then the parties may move forward with the hearing.Attorneys Fees: A new provision has been added stating While this section first appeared shocking to20 U.SC. 1400 § 615(i)(3)(D)(ii) that a court may award attorney’s fees to a most parents, it is believed that to prove a district “against the attorney of a parent” case is “frivolous, unreasonable or without who: 1) files a complaint that is frivolous, foundation” will (as is now the case in all unreasonable or without foundation and 2) litigation) be extremely difficult. However, if who continues to litigate after the litigation a school district pursues a parent under this clearly became frivolous, unreasonable, or section, even if the parent wins, the resources without foundation. utilized to defend the claim are unduly burdensome to most families. (continued on next page) 12
    • Section Change ImpactAttorneys Fees: (cont’d) A district can also be awarded attorney’s20 U.SC. 1400 § 615(i)(3)(D)(ii) 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. 13
    • Section Change ImpactManifestation Determination: This provision poses new questions the IEP It is believed the amended language makes it20 U.SC. 1400 § 615(k)(1)(E) team must consider when determining easier for a school district to determine that a whether a child’s behavior was or was not a child’s behavior was not a manifestation of manifestation of their disability: 1) If the his/her disability. 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 the guaranteeManifestation: district does find a child’s behavior to be that if their child is suspended for more than20 U.SC. 1400 § 615(k)(1)(F) related to his or her disability, then it is 10 days in a year, that a FBA and BIP will be required to: 1) create and FBA and BIP for drafted. 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. 14
    • 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 45 school year is approximately 180 school days,(k)(1)(H)(2) school days, as opposed to 45 calendar removal for 45 days constitutes about 25 days. percent of the school year. A third reason for removal of a child has There will also be considerable debate also been added, which is for “inflict[ing] regarding the language “serious bodily serious bodily injury upon another person injury.” The section states that the definition while at school, on school premises, or at a is defined as it is in the U.S. criminal code (18 school function under the jurisdiction of USC §1365(3)(h), which defines it as: the school 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-day function of a bodily member, organ, or removals. The new language now states mental faculty.” the child’s placement will remain at the alternative placement during the pendency From this definition, it appears that it will be of the dispute. In addition, the timeline for difficult for school districts to define a child’s completion of an expedited due process actions as “serious bodily injury,” however hearing to overturn the decision to remove case law will have to determine what is the child has been extended. Formerly, the considered “serious.” requirement was for the hearing and opinion to be completed within 15 calendar The new timeline set for “expedited” due days of a hearing being requested by the process hearings is now more in favor of parents. The new language changes this districts, since 30 school days translates to from 15 calendar to 30 school days. about 45 calendar days. 15
    • Section Change ImpactProtections for Children Not Yet Eligible New language states that a school district is New language has significantly restrictedfor Special Education and Related deemed to have “knowledge” that a child what is considered “reasonable notice” to theServices: has a disability if, before the behavior school district that a child may have had a20 U.SC. 1400 § 615(k)(5)(C) occurred: 1) the parent of a child expressed disability. Former language would allow for a concern, in writing, to the district, 2) the child’s “behavior or performance” to be parent requested a CSE, or 3) a teacher of sufficient notice, however the new language the child or other school district personnel places added burden on the parents of a child expressed specific concerns about a pattern who may have a disability to be well of behavior to the director of special informed of their rights and assertively insure education or “other supervisory personnel.” that concerns are brought to the school district prior to the child displaying behavior. Training is needed in this area. Also, a child may not be considered to be a “not yet eligible child” if the District had performed a CSE and an IEP and the parent refused consent for the initial placement.Preschool Grants: The new language now allows for states to If Illinois chooses to create such a policy,20 U.SC. 1400 § 635(c) have the option of creating a policy which then parents who choose these services will would allow parents to choose to continue not be afforded the protections offered under early intervention services “until such IDEA for special education students until children… enter kindergarten,” as opposed they are placed into kindergarten. to having the responsibility rest solely on the school district upon age three. 16
    • 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). 17
    • PARENTAL WAIVER (IDEIA 2004) The undersigned, parents of _______________________________________, Age_________, by signing this form acknowledge they waive the following in the conduct oftoday’s IEP meeting: ______________________, required IEP attendee, is a ___________________ (title)and it is agreed that he/she does not need to attend today’s IEP meeting; A re-evaluation in the domain(s) of ___________________________________ _____________________________________________________________________ is not required at this time;An annual review meeting is not required at this time, and it is agreed that currentIEP services will continue into the next academic year. The undersigned recognizes and agrees that he/she has the right to the item waived and,knowing this, chooses to waive the item at this time. X: _________________________________ Parent/Guardian/Surrogate Witness:_________________________ Date: ________________________ Title: _________________________ Prepared by Whitted & Cleary LLC, 3000 Dundee Road, Suite 303, Northbrook, IL 60062 (847) 564-8662 Fax: (847) 564-8419 www.whittedcleary.com 18
    • RECENT SPECIAL EDUCATION DECISIONS Lara A. Cleary WHITTED & CLEARY LLC 3000 Dundee Road Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8661 www.whittedclearylaw.com Lcleary@Whittedclearylaw.com 19
    • I. PROCEDURAL ISSUES A. Burden of Proof JH v. Henrico County Sch. Bd, 42 IDELR 199, 105 LRP 2852 (4th Cir. January 20, 2005 ).In this case the 4th Circuit Court of Appeals relied on a ruling it had made only months below in a similar case,Weast v. Shaffer (see below), and remanded to a hearing officer for the third time stating that the hearing officershould have placed the burden of proof on the parents, not on the school district. The student, who has high-functioning autism, was in a public school’s general education program with special education and relatedservice for the regular school year. The public school district offered an extended school year program to thestudent with similar services as offered during the regular school year, but at reduced levels. The student’sparents disagreed, arguing that the student should have a high level of services during the summer program in asmaller setting in order to avoid regression, and they took the case to a due process hearing. The hearing officerfound in favor of the parents, concluding that the district had failed to prove that its extended school year IEPwas appropriate to prevent the student from regressing during the summer and to prevent the gains he made frombeing significantly jeopardized.On appeal, the 4th Circuit reversed the hearing officer’s decision, but refused to render a decision on the merits ofthe case, stating “Unbeknownst to the Hearing Officer and the parties at the time of the administrative hearing on[the first] remand, the hearing officer erroneously placed the burden of proof on the [school]. Under our recentdecision in Weast, issued long after the conclusion of the proceedings in this case below, the Hearing Officershould have placed the burden of proof on the Plaintiffs.” Therefore, the Court remanded the case back to thehearing officer with specific instructions to reweigh the conflicting evidence with the burden of proof “properly”allocated on the parents to answer the question of whether the IEP was appropriate. Weast v. Schaffer, 41 IDELR 176, 104 LRP 35502 (4th Cir. July 29, 2004).The parents of a student with ADHD and learning disabilities challenged their public school district’s decision toeducate their son at his home school. The parents believed that this child required a smaller class size, placedhim in a private school and then requested reimbursement of the tuition and other expenses for the student’sprivate school education. At the original due process hearing, the hearing officer assigned the burden of proof tothe parents. Both sides submitted extensive expert testimony, and the hearing officer considered the case to be“close” but ultimately found that the parents had not met their burden and upheld the IEP offered by the schooldistrict.On appeal, the district court reversed, finding that the hearing officer had erred in assigning the burden of proofto the parents, and remanded back to the hearing officer for further proceedings. Following the remand, wherethe hearing officer held in favor of the parents with the reallocated burden of proof, the case was again appealed.Ultimately the 4th Circuit, after reviewing how many of the other circuit courts allocated the burden of proof,decided that there was “no reason to depart” from the generally held rule in law that the party seeking relief, herethe parents, had the burden of proof. The court reasoned in part that Congress specifically took care to providecomprehensive procedural protections to parents in order to level the playing field.Although the Seventh Circuit has not specifically ruled on this issue, the majority of Illinois State hearingofficers assign the burden of proof to the school district. This is the majority view, in line with the Second,Third, Eighth, Ninth and D.C. Circuits. See, Walczak v. Fla. Union Free Sch. Dist. 142 F.3d 119 (2nd Cir. 1998),Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520 (3rd Cir. 1995), E.S. v. Independent Sch. Dist. No. 196, 135 F.3d566 (8th Cir. 1998), Clyde v. Puyallup Sch. Dist. No. 3, 35 F.3d 1396 (9th Cir. 1994), and McKenzie v. Smith, 771F.2d 1527 (D.C. Cir. 1985), respectively.In ruling that the parents have the burden of proof in a due process hearing, the Fourth Circuit adopted theminority view also held by the Fifth, Sixth, and Tenth Circuits. See Alamo Heights Indep. Sch. Dist. v. State Bd.Of Educ., 790 F.2d 1153 (5th Cir. 1986), Cordrey v. Eukert, 917 F.2d 1460 (6th Cir. 1990), and Johnson v. Indep.Sch. Dist. No. 4, 921 F.2d 1022 (10th Cir. 1990) respectively. 20
    • On Tuesday, February 22, 2005 the Supreme Court agreed to hear the Weast appeal. In its 2-1 decision in Weast, the 4th Circuit acknowledged that the Circuits were split on the issue, and of course, with the Weast decision asit currently stands, they are now almost evenly split on this issue. No timetable for the High Court’s decision isavailable, but a ruling is expected by June, 2005. B. Other Procedural Issues Veazey v. Ascension Parish Sch.Bd. 42 IDELR 140, 105 LRP 819 (5th Cir. January 5, 2005).The Fifth Circuit concluded that a school district is not required to provide the parents of a child in specialeducation with prior written notice before it implements a change in the location of a school program, becausesuch a change is not necessarily a change in placement pursuant to the language of the IDEA. In this case aschool district transferred a student with a hearing impairment from his neighborhood school that was threemiles from his home to another school located seven miles from his home but did not change his program. Inaddition, the transfer required the student to now take a special education bus, where he previously could take aregular education bus. The court held that prior written notice was not necessary because the IEP placement hadnot changed, just the location, and the bus change itself was not a “fundamental change.” Moreover, they foundno evidence that the changes in the bus or the location of the program in any way altered the fact that the IEPwas reasonably calculated to enable him to receive educational benefits by providing him with the “requisitebasic floor of opportunity.” County Sch. Bd. Of Henrico County v Z.P. by R.P., 105 LRP 6113 (4th Cir. February 11, 2005).The Fourth Circuit ruled that the lower court erred when it failed to give appropriate deference to a due processhearing officer’s determination that a proposed IEP was inappropriate and denied the student FAPE.Specifically, the 4th Cir. faulted the district court for reversing a hearing officer’s decision to award privateschool reimbursement to the parents of a preschool student with autism, stating that the hearing officer’s decisionto accept the parent’s evidence over the district’s was not alone a reason for the district court to reject the hearingofficer’s findings. The requirement to give deference to the professional educators opinions did not mean that thehearing officer, after giving deference and considering the evidence, was obligated to accept the district’stestimonial evidence over that presented by the parents. The 4th Circuit reasoned that such a rule “would rendermeaningless the due process rights guaranteed to parents by the IDEA.”II. RESIDENTIAL PLACEMENTS Lamoine Sch. Committee v. Ms. Z ex rel. N.S., 42 IDELR 172 (D. Me., January 4, 2005)The parents of a sixteen-year-old student with reading, writing, language and math learning disabilities andemotional disabilities were entitled to reimbursement for their unilateral placement of the student in privateresidential school. A Maine District Court ruled that a due process hearing officer did not err in finding that theschool district’s IEP had failed to address the student’s attendance issues and failed to provide adequateeducational, behavioral and emotional supports. Westford Pub. Schs., 42 IDELR 162 (SEA MA, December 22, 2004).A hearing officer determined that a district’s “collaborative education” program for an eighteen-year-old studentwith autism and diabetes was appropriate and denied the parents request for a residential placement. Specifically,the district was offering placement in a collaborative educational center that would allow the student toparticipate in classroom and community experiences with vocational instruction at a 1-to-2 ratio, a 1-to-2.5classroom ratio, off-site community experiences, and an LPN or RN aide for insulin shots and medicalmonitoring. In addition, the district’s program allowed the student the opportunity to transition into an adult-based program once he reached age 22. San Diego Unified Sch. Dist., 42 IDELR 47 (SEA CA. August 12, 2004)In this case a hearing officer upheld the decision of a California school district to place a fifth grade student withbipolar disorder, major depression and childhood psychosis in a residential facility. The hearing officer 21
    • determined that the district had appropriately considered less restrictive alternatives prior to recommending theresidential placement. The residential placement was deemed appropriate because it conformed to the student’sbehavioral needs and provided him with the advantages of medication monitoring, structure and frequenttherapy.III. REMEDIES McCormick ex rel. McCormick v. Waukegan School District #60, 41 IDELR 148, 104 LRP 32195 (7th Cir. July 7, 2004). The Seventh Circuit concluded that a ninth-grade student with McArdle’s disease, a rare form of Muscular Dystrophy, who incurred permanent kidney damage because his physical education teacher failed to adhere to his IEP, was not required to exhaust his administrative remedies before bringing suit against his school district and several employees under Section 1983 and several state tort-law theories. He sustained the physical injuries as a result of the teacher’s instructions to run laps and do push-ups in contravention of his IEP. The Court explained that exhaustion would be futile because the student sought remedies for solely physical, not educational or “emotional” injuries, and the IDEA does not provide for remedies in such a situation. Exhaustion of remedies is excused if the IDEA’s administrative processes cannot remedy a student’s damages. It is important to note that the Court carefully distinguished this case from the Charlie F. v. Board of Education of Skokie School District 68, 98 F.3d 989 (7th Cir. 1996) case, where the plaintiffs were required to exhaust the IDEA process even though there were seeking only monetary damages. Thus in McCormick, the outcome turned on the nature of the injury and not the type of compensation requested. Ortega ex. rel. Ortega v. Bibb County Sch. Dist., 42 IDELR 200, 105 LRP 3846 (11th Cir. January 26, 2005).The parents of a deceased four-year-old student sued a school district after the student asphyxiated and diedwhen his tracheotomy tube dislodged at school. The suit claimed in part that parents were entitled to monetaryrelief for the child’s death because the district violated the IDEA by failing to have a person capable ofreinserting the tracheotomy tube at the time of the incident in question. At the district court level the schooldistrict moved for summary judgment claiming that the child’s death rendered the parent’s IDEA claim moot.The District court denied the motion, determining that it had discretionary authority under the IDEA to grantrelief in the form of monetary damages. The issue before the Eleventh Circuit was simply whether tort-likemoney damages are available under the IDEA. The Eleventh Circuit held that the IDEA does not providemonetary relief and reversed the decision of the district court, remanding with instructions to award judgment tothe district. The court reasoned that the IDEA does not provide monetary relief because its primary purpose is toensure students FAPE and “not to serve as a tort-like mechanism for compensating personal injury.” However,the court noted that the IDEA does not restrict or limit remedies available under other federal laws, and thatother statutes serve as possible avenues for recovery for IDEA violations.IV. ATTORNEY’S FEES T.D. v LaGrange School District No. 102, 40 IDELR 32 (7th Cir., November 14, 2003)On November 14, 2003, a decision rendered by the U.S. Court of Appeals for the Seventh Circuit has changedthe law in Illinois to preclude a parents’ reimbursement for expert fees when they are prevailing parties and hasclarified the law regarding reimbursement of attorneys fees in IDEA cases. This decision, T.D. v LaGrangeSchool District No. 102, 40 IDELR 32, determined that the case of Buckhannon Board & Care Home, Inc. vWest Virginia Department of Health and Human Services, 532 U.S. 4598 (2001), which involved the federalAmericans with Disabilities Act and Fair Housing Amendments Act, did apply to IDEA cases, and as such,parents who achieve a remedy through settlement agreements thus prior to a hearing or “some sort of judicialimprimatur,” are not “prevailing parties” entitled to the reimbursement of attorneys fees.However, the Seventh Circuit’s opinion in T.D., like the Buckhannon decision, did provide one caveat tocollecting attorney’s fees in some settlement situations – if the settlement is not merely private (between twoparties), but is filed and ordered through the courts, like a consent decree, then there can be argument that those 22
    • parents would be considered “prevailing parties.” Of course, attorney’s fees are still available to parents deemedprevailing parties through a due process hearing or court action. Doe v. Boston Public Schools, 40 IDELR 176 (1st Cir. February 6, 2004). The parents of a 19-year-old mentally disabled student sought attorney’s fees despite the fact that theyhad settled the case just prior to the first day of a due process hearing with the local school district. At theadministrative level, the parents requested for the hearing officer to sign and read into the administrative recordthe settlement agreement, however the hearing officer refused. On appeal, the district court found thatBuckhannon applied to IDEA cases and as such, the parents were not “prevailing parties” and were not entitledto attorney’s fees. The appellate court upheld the district court’s ruling, and found that Buckhannon “is presumedto apply generally to all fee-shifting statutes that use the ‘prevailing party’ terminology, including the IDEA,”thus adding the 1st Circuit with the 2nd, 3rd and 7th Circuits. Evanston Community Consolidated Sch. Dist. No. 65 v. Michael M. and Christine M., 42 IDELR 116 (N.D. Ill. November 24, 2004).On remand from the Seventh Circuit, the Northern District of Illinois concluded that a student was entitled to70% of his attorney’s fees. The Seventh Circuit opinion is reported at 356 F.3d 798. The district court judgedetermined that the parents prevailed on three out of the 11 total issues at the due process level, however thosethree issues were “at the heart of the parties’ dispute.” The judge determined that it would be difficult todetermine how much time was exactly spent on those three issues from reviewing the parents’ attorney’s billingrecords, and reduced the amount of fees awarded to reflect the degree of success obtained by the student. Justin B. v. Laraway Community Consolidated School District, 41 IDELR 207 (N.D. Ill. July 23, 2004).The district court determined that the statute of limitations for filing for attorneys fees begins not from the dateof the administrative order, but from the date when the administrative order becomes “final,” which occurs whenthe time for the district to challenge the decision expires or, if the district proceeds with a judicial challenge, until120 days after exhaustion of judicial remedies.V. FREE AND APPROPRIATE PUBLIC EDUCATION Greenland School District v. Amy N., 40 IDELR 203 (1st Cir. February 23, 2004)In this case, the appellate court ruled on a parent’s right to reimbursement of tuition for a unilateral private dayschool placement. The parents of a ten-year-old girl diagnosed with LD, ADHD and Asperger’s Disorder pulledtheir child out of the public school after she began suffering academically and required private tutoring servicestwice a week in order to complete homework assignments. At no time while the girl was still attending thepublic school did the parents request a CSE or special education services. It is important to note that the motherof this child was a special education teacher herself, to which the appellate court gave weight as the parents weretherefore aware of the proper procedures for requesting special education services. Shortly after the girl wasunilaterally placed in a private day school, the parents contacted the public school district and requested apsychological evaluation be conducted. The district did conduct a full CSE and drafted an IEP for the girl whichrecommended placement at the public school with a 1:1 aide, counseling services, speech language services andthe use of social stories use in the classroom. The parents refused the recommended placement and filed for dueprocess to receive retroactive reimbursement for her day school placement.The due process hearing officer found in favor of the parents, stating that the district did not provide FAPE to thegirl, that it violated its child find obligations by not finding her eligible for services at the public school, and thatthe child’s return to the public schools was not appropriate and awarded the parents total reimbursement for theday school. On appeal, the district court judge partially reversed the administrative decision, finding that sincethe girl was unilaterally placed at the private school prior to her being found eligible for services, anadministrative court did not have authority to consider the issue of FAPE, only child find issues and found infavor of the parents on that issue. The district then appealed the district court’s ruling. In reviewing the case, theappellate court found that the 1997 amendments to the IDEA established that complaints about services a 23
    • privately-placed disabled student “must be brought through the state administrative complaint system rather thana due process hearing.” (34 CFR § 30.457(a)(c)). The appellate court also stated that “tuition reimbursement isonly available for children who have previously received ‘special education and related services’ while in thepublic school system (or perhaps those who at least timely requested such services while the child is in publicschool).” Alex R. by Beth R. v. Forrestville Valley Community School District #221, 41 IDELR 146 (7th Cir. July 15, 2004).After a hearing officer ordered a special education student who suffered from a rare neurological syndrome and ahistory of violent behavior be returned to regular classes, the Seventh Circuit Court of Appeals ruled the districtacted properly in managing the student’s IEP and placing him in a self-contained program. The Court reasonedthat it was proper to consider the student’s disruptive impact on other students in designing his educationalprogram, finding that this component must be addressed in the student’s IEP. In addressing the parents’argument that the district should have provided additional services in years past to prevent the behavioral crisis,the Court noted the absence of guidance for behavioral intervention plans. Specifically, the Court noted thatneither the IDEA, nor its implementing regulations, provide specific substantive components for a behaviorintervention plan. Instead, the contents are a matter of state law, local policy and professional practice.Generally, however, the IEP should describe the behavior of the student that is interfering with learning, theexpected behavioral changes, and the positive strategies and supports that will be used to change the behavior. 24