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PowerPoint - Special Education
 

PowerPoint - Special Education

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A PowerPoint presentation for Guardian Ad Litem's regarding Special Education.

A PowerPoint presentation for Guardian Ad Litem's regarding Special Education.

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    PowerPoint - Special Education PowerPoint - Special Education Presentation Transcript

    • SPECIALEDUCATION Neal Takiff Brooke Whitted WHITTED CLEARY & TAKIFF LLC © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • “EDUCATION”•FREE•A PPROPRIATE•PUBLIC•EDUCATION © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • FREE• NO CHARGE TO• STUDENT OR HIS ESTATE• PARENTS OR GUARDIAN• PARKS V. PAVKOVIC: “FREE MEANS FREE”• IRRELEVANT WHO’S PAYING © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • APPROPRIATE• ROWLEY CASE: ACCORDING TO EACH STUDENT’S UNIQUE NEEDS• THE HOLDING OF ROWLEY• THE TWO ROWLEY QUESTIONS: – “PROCEDURAL” QUESTION – “SUBSTANTIVE” QUESTION• WHAT DOES ROWLEY SAY MUST BE MAXIMIZED IN EVERY CASE? © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • PUBLIC• PROVIDED –OR--• PAID FOR –BY--• A PUBLIC SCHOOL DISTRICT (LOCAL EDUCATION AGENCY “LEA”) © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • EDUCATIONTHE ROWLEY CASE – ESTABLISHING EDUCATIONAL BENEFIT• Standard for Special Education Services – “Some educational benefit” -Not a MAXIMAZITATION, not the bare minimum -Not a “Cadillac,” just a serviceable “Chevy.”• Two-Prong Legal Analysis 1. PROCEDURAL: Has the district complied with the procedural requirements of the Act? 2. SUBSTANTIVE: Is the IEP “Reasonably Calculated” to confer educational benefit?• Procedural Violation – Must result in a deprivation of educational opportunity in order to be actionable. © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • Education II• Disability category should NEVER drive services• IEPs must be individualized – Districts must NEVER state that they provide “set” services or that they “don’t provide” a requested service.• “Consider” all requests – Even under Lachman © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • PRACTICALAPPLICATION OF SPECIALEDUCATION LAW © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • The Process of Obtaining Special Education Services• Child Find responsibilities – affirmative duty• Referral for initial Case Study Evaluation (CSE) – May be made by a parent, employee of school district, ISBE, another State agency, or a community service agency – RtI does not delay district’s need to respond to a parent request for CSE © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • Response to Intervention• A word about RtI…. © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • The Process of Obtaining Special Education Services• District has 14 days to respond to parents requesting case study evaluation – Parents can request a due process hearing to contest district’s refusal to conduct CSE – If District agrees, parent must sign consent for evaluations (domain meeting) – Date parents sign, starts the 60 school day timeline © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • Is a Denial of a CSE Justified?• Grades• Behavior• Peer relationships• Emotional well being• Attendance• Home Issues• Court Involvement• Drug and Alcohol Issues• Hospitalizations © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • Is a Denial of a CSE Justified?Isolated Incidents: Two suicides not enough when behavioral assessments within the average range, depression in remission, no difficulties with peers or teachers, above-average grades St. Joseph-Ogden Comm. H.S. Dist. No .305 v. ISBE, 49 IDELR 125 (Jan 17, 2008).Medical diagnosis has to constitute a disability under the IDEA , mere medical diagnosis does not qualify)(Alopecia Areata). Bloom Township HS Dist. 206, 112 LRP 21291 (April 23, 2012 © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • Is a Denial of a CSE Justified?“Educational performance” means more than a child’s ability to meet academic criteria. It must also include reference to the child’s development of communication skills, social skills, and personality, as the Code, itself, requires. 34 CFR 300.533(a)(1); Mary P. v. ISBE, 919 F. Supp. 1173 (N.D. Illinois 1996).Truancy does not automatically exclude special education. Emotional disturbance should be evaluated independently.Drug and Alcohol Issues: Can be self-medication of underlying emotional issues. © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • The Process of Obtaining Special Education Services• Conference is then held to determine eligibility• If eligible, an IEP is written for the child within 30 days of eligibility determination• Initial placement decision made• School must wait 10 days before placement and services are made (parents can waive this waiting period) © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • Least Restrictive Environment• What is LRE?• What is the range of educational placements?• Mainstreaming? Inclusion? Is it required? When?• What is the test according to the 7th Circuit? © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • 7th Circuit Test• “The Act itself provides enough of a framework for our discussion; if Beths education at Lake Bluff Middle School was satisfactory, the school district would be in violation of the Act by removing her. If not, if its recommended placement will mainstream her to the maximum appropriate extent, no violation occurs.” © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • Satisfactory?• Time in class• Progress in goals• Where is learning occurring• Behaviors• Accessing curriculum/mainstream environment © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • TDS vs. Home School• Can the student’s needs be met in the mainstream (home school) setting, i.e. will they get a satisfactory education? – What benefit will the child receive from access to non-disabled peers – Can they access that benefit – What level of related services does the student need © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • TDS vs. Home School– Does the district have the appropriate educational services to meet the students needs (life skills, multisensory classes, autism services)– If already in special education, have they met their goals and objectives– Private evaluations? Recommendations?– Discipline, attendance (school refusal anxiety) • In school stronger evidence than out of school… © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • How Do You Define Progress?Making Sure the IEP is Implemented as Planned Goals must be measurable Progress updates Annual reviews Reevaluations Drafts of reports/goals School Observation © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • Goals © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • The Process of Obtaining Special Education Services• Annual review of IEP• Three year re-evaluation• Transfer Students – Must provide comparable services until the district adopts prior IEP or develops, adopts and implements a new IEP © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • DUE PROCESS PROCEDURESI. REQUEST MUST BE IN A CERTAIN FORMATII. IN WRITING, TO THE SUPERINTENDENTIII. RESOLUTION SESSION – W/IN 15 DAYS  LAWYERS? NO LAWYERS?? ADVOCATES?  WAIVER IN FAVOR OF MEDIATION?  SESSION MUST INCLUDE:  PARENTS  DISTRICT REPRESENTATIVE WITH AUTHORITY  MEMBERS OF THE IEP TEAM “HAVING KNOWLEDGE OF THE HEARING REQUEST” © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • DUE PROCESS III. PARTY RECEIVING REQUEST HAS 15 DAYS TO OBJECT TO ITS SUFFICIENCYII. HEARING OFFICER DETERMINES IF THE REQUEST MEETS LEGAL REQUIREMENTS NOTICE AND TIMING: WHY IMPORTANT?? ANSWER: ROWLEY LIVES! © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • RESOLUTION SESSIONS AND MEDIATION INFORMAL, SUPPORTIVE ATMOSPHERE NO GANGING UP ON ANYONE; BE POSITIVE HAVE SMALLEST POSSIBLE # OF PEOPLE ONE EXPERT WILL DO; PICK THE CALMEST AVOID VERBAL DIARRHEA IF LAWYERS HAVE TO BE THERE, IT’S GOOD DISCOVERY © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • PREPARATION FOR HEARINGSI. YOU USUALLY NEED LAWYERS HERE: IT’S LITIGATION!II. BETTER TO PREPARE WITNESSES INDIVIDUALLY, NOT IN A GROUPIII. START OUT NICE, GET NASTY ONLY IF NECESSARYIV. ALWAYS BE OPEN TO SETTLEMENT: FOCUS ON THE STUDENT (HEARINGS ARE ONLY FUN FOR LAWYERS) © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • BUCKHANNON and WINKLEMAN BUCKHANNON [532 US 598 (2001)]:PARENTS HAVE NO RIGHT TO COLLECT EXPERT FEES UNDER THE HCPA (NOTE: THIS WAS NOT AN IDEA CASE – IT WAS ADA)WINKLEMAN v. PANAMA CITY (2007) PARENTS CAN REPRESENTTHEMSELVES IN IDEA ACTIONS WITHOUT A LAWYER WHY IS THIS CASE CONSISTENT WITH ROWLEY? © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • INVOLVING THE JUVENILE JUSTICE SYSTEM WHEN IS THIS APPROPRIATE?I. FOR PARENTS – JUVENILE COURT CAN PRESSURE THE SCHOOL DISTRICTII. FOR DISTRICTS A. SOMETIMES YOU HAVE NO CHOICE, BUT FOR ASD STUDENTS SHOULD BE DONE AS A LAST RESORT AND ONLY VERY SPARINGLY; B. GOOD WAY TO GET A QUICK CHANGE OF PLACEMENT: BY JUDGE’S ORDER, OVER THE OBJECTION OF THE PARENTS (USEFUL IN “FULL INCLUSION” SITUATIONS) © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • EXTENDED SCHOOL YEAR• BIXBY CASE CONSIDERATIONS: – DEGREE OF REGRESSION SUFFERED IN THE PAST; – PARENT ABILITY TO PROVIDE HOME STRUCTURE; – CHILD’S RATE OF PROGRESS; – SPECIFIC BEHAVIORAL AND PHYSICAL PROBLEMS; – AVAILABILITY OF ALTERNATIVE RESOURCES; – AREAS OF PLAN THAT NEED CONTINUOUS ATTENTION; – VOCATIONAL NEEDS OF THE CHILD; – WHETHER THE PROPOSED SERVICES ARE “EXTRAORDINARY” FOR THE CHILD’S CONDITION – EXACT TIME AND SCOPE OF PAST REGRESSIONS © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • COMMON MISTAKES1. POOR USE OF INTERPERSONAL SKILLS2. NO FOLLOW-THROUGH3. NOT ADMITTING YOU WERE WRONG4. CATEGORICAL TREATMENT (“WE DON’T DO THAT”)5. ZERO TOLERANCE POLICIES (LAWYER’S DREAM)6. REFUSAL OF MANDATED SERVICE7. GRAPHIC PROCEDURAL VIOLATIONS8. SECRETIVE OR “CLOSED DOOR” CONDUCT9. TOO MUCH TALKING (THE PARENT DISEASE)10. GREED, AVARICE, SLOTH, GLUTTONY….. © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • Compensatory Education• What is it?• Examples of awards?• Is it authorized by IDEA?• When is a student eligible?• How is amount determined?• Can it be awarded beyond a student’s 22nd birthday?• What about stay put? © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.
    • QUESTIONS? THANK YOU! © 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.