1
All Things Considered
Recent Decisions on the
Written Offer of Placement
and Follow Through
2
Overview
 How specific is specific?
 What must be included in a written offer of
placement?
 What is prior written no...
3
Decisions to be Considered
 Buckeye USD. How specific does SAI need
to be on an IEP?
 West Covina USD. What specificit...
4
Student v. Buckeye Union
School District (OAH 2009)
5
Issue
 Whether the District denied Student a FAPE
by failing to describe in writing on what goals
Student would be work...
6
Pre-K
 Boy qualified for special education under
speech and language impairment, but exited
prior to Kindergarten
Stude...
7
Kindergarten
 Student’s
behaviors
increased
Student v. Buckeye Union School Dist. (OAH
2009)
8
1st
Grade
 Student’s
behaviors
increased
Student v. Buckeye Union School Dist. (OAH
2009)
9
2nd
Grade
 Student’s
behaviors
increased
Student v. Buckeye Union School Dist. (OAH
2009)
10
2nd
Grade
 IEP team found Student eligible due to
specific learning disability
 Behavior was to avoid academics
 Off...
11
2nd
Grade
 IEP team reconvened following FBA
 Offered to increase SAI to 20 hours per week
 Offered to develop goals...
12
Student Alleged
 Denial of FAPE by
 Failing to specifically describe the SAI
 Offering to increase services prior to...
13
The Law
 Procedural Violations
 Only amount to a substantive denial of FAPE if
 Impede child’s right to a FAPE
 Sig...
14
The Law
 Definition of IEP
“A Written Statement”
15
The Law
 Content of IEP (including, but not limited to)
 How the child’s disability affects involvement
and progress ...
16
The Law
 Consent
 Parent has been fully informed
 Parent understands and agrees in writing
17
The Law
 Direct relationship between present levels,
goals, and services
18
The Law
 Special Education Placement
 “Unique combination of facilities, personnel,
location or equipment”
19
The Reveal
Union v. Smith
 Single, formal written offer of placement
 Clear record
 Eliminates factual disputes
 Cl...
20
The Reveal
 No obligation to provide hour-by-hour
account of SAI implementation
 Increase in SAI based on sufficient
...
21
Lessons Learned
 Specificity
 Understandable language
 Services follow goals
22
Fact-Specific OAH Cases
 No FAPE
 St. Helena. No indication of push-in vs. pull-out
 Shoreline. No description of le...
23
Fact-Specific OAH Cases
 FAPE
 Hacienda La Puente. Location does not equal
placement
 Montecito. No obligation to re...
24
Student v. West Covina USD
(OAH 2007)
25
Issues
Whether District failed to document
1. Accommodations, behavior plan, transition
services, and ESY
2. Considerat...
26
Just the Facts Ma’am. Just the Facts
 16-year-old student
 Parent lived in New Mexico, assigned
education rights to g...
27
Just the Facts Ma’am. Just the Facts
For 2007-08, District offered
 SDC for basic math, English, world history, and
bi...
28
Student Alleged
 2006-07
 District failed to include accommodations, behavior plan,
transition plan to high school, E...
29
The Law
 Least Restrictive Environment
To the maximum extent appropriate, children with
disabilities are educated with...
30
The Law
 Partial Consent
If the parent . . . does not consent to all of
the components of the individualized
education...
31
The Law
 Predetermination
The test is whether the school district comes
to the IEP meeting with an open mind,
discusse...
32
The Reveal
 Accommodations section of IEP left blank,
resulting in a procedural violation that
denied FAPE
33
The Reveal
 No requirement to develop a transition plan
to high school, but IEP team must consider
whether student had...
34
The Reveal
 Boxes checked on IEP indicating:
 Supplementary aids and services considered in
general education
 Goals...
35
The Reveal
 IEP did not indicate why Student’s disability
prevented his needs from being met in a
less restrictive set...
36
The Reveal
 By failing to include required information,
district significantly impacted ability of parent
to participa...
37
The Reveal
 District did not fail to notify parents of right to
consent to only a portion of IEP because
that informat...
38
Lessons Learned
 Determination of LRE requires discussion of
supplementary aids and services,
accommodations, and modi...
39
Lessons Learned
 Beyond statutory transition planning, IEP
team should consider student’s needs when
any change occurs...
40
Lessons Learned
 Describe ESY services with same level of
specificity as the offer of placement
41
Lessons Learned
 Especially in the age of computerized IEPs,
make sure team discusses placement
options; it need not b...
42
Lessons Learned
 Make sure team, including parents and staff,
understand the placement offer
 One test is to pretend ...
43
Student v. Capistrano USD
(OAH 2008)
44
Issue
 Whether the District failed to provide prior
written notice of its refusal to implement
services that were list...
45
Facts: Who is . . .
 18-year-old student passed
the CAHSEE, earned regular
high school diploma
 During sophomore year...
46
Facts
 District offered mileage reimbursement to
NPA for Fast ForWord
 Parents declined because of distance,
requeste...
47
Facts
 During the next school year, District offered
 30 additional sessions of Fast ForWord via
parent reimbursement...
48
Facts
 Problems ensued
 Parents no longer able to front Fast ForWord,
but their agency became an NPA, District sent a...
49
Facts
 And more problems
 District inadvertently failed to provide speech
and language therapy
 District attempted t...
50
Student Alleged
 District failed to give prior written notice of
 Failure to provide Fast ForWord services
 Failure ...
51
The Law
 Prior Written Notice (PWN)
 Required when an agency
 Proposes to initiate or change the identification,
eva...
52
The Law
 Content of PWN
 Description of action proposed or refused
 Explanation of why
 Description of evaluation p...
53
The Law
 IEP as PWN
 As long as IEP contains all the required
elements, IEP document can serve as PWN
 Proposal to r...
54
The Reveal
 Fast ForWord: District should have provided
PWN of refusal to implement services, which
resulted in a loss...
55
Lessons Learned
 PWN must be provided prior to a proposal or
refusal that has already been discussed, but
not yet impl...
56
Lessons Learned
 Be wary of any difficulties in implementing a
service. A refusal to implement a
component of the IEP ...
57
Student v. Orange County Health
Care Agency (OAH 2008)
58
Issues
1. Whether a public agency can make
multiple offers of FAPE in private facilities
pending acceptance
2. Whether ...
59
Facts
 17-year-old girl,
parents divorced
 Behaviors escalated in
high school, father
placed her at a
residential fac...
60
Facts
 CMH subsequently assessed, determined
that Student required residential placement
 CMH could not consider Prov...
61
Facts
 At IEP meeting, CMH offered four
possible placements
 CMH requested parent’s authorization to
send application...
62
Student Alleged
 CMH predetermined placement at
Laramie facility and failed to consider
parent’s request for Provo fac...
63
The Law
 As long as program and/or services meet
student’s unique needs, school districts
have discretion to select pr...
64
The Reveal
 No Predetermination
 School district staff
facilitated participation
of parents and staff at
Provo--we ho...
65
The Reveal
 No offer of placement until specific facility
identified and communicated
 CMH sought to shorten the appl...
66
The Reveal
 Frequency, location, and duration
 CMH denied parents the opportunity to
participate in the IEP process b...
67
Lessons Learned
 School district staff must consider, consider,
and then consider
 However, after considering, the ch...
68
Lessons Learned
 When offering placement in facilities that
require acceptance, remember that the offer
is not complet...
69
Lessons Learned
 Room and board is a related service. It
must relate to a special education placement
 IEP team shoul...
70
Lessons Learned
 Same level of specificity for
 Special education and related services at private
facilities
 Specia...
71
Conclusion
 The written offer --it's all about clear
communication with the parents
 And remember, if staff do not un...
72
Time for
Questions
73
Time for Lunch!
Be back here by 1:00 p.m.
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SES Fall 2012 All Things Considered - Recent Decisions on the Written Offer of Placement and Follow Through

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SES Fall 2012 All Things Considered - Recent Decisions on the Written Offer of Placement and Follow Through

  1. 1. 1 All Things Considered Recent Decisions on the Written Offer of Placement and Follow Through
  2. 2. 2 Overview  How specific is specific?  What must be included in a written offer of placement?  What is prior written notice and when should it be provided?  How do we provide a written offer of placement in private schools and facilities?
  3. 3. 3 Decisions to be Considered  Buckeye USD. How specific does SAI need to be on an IEP?  West Covina USD. What specificity is required in a FAPE offer?  Capistrano USD. Does an IEP satisfy the PWN requirement?  Orange County HCA. What if multiple residential placements are offered?
  4. 4. 4 Student v. Buckeye Union School District (OAH 2009)
  5. 5. 5 Issue  Whether the District denied Student a FAPE by failing to describe in writing on what goals Student would be working during specialized academic instruction (SAI) Student v. Buckeye Union School Dist. (OAH 2009)
  6. 6. 6 Pre-K  Boy qualified for special education under speech and language impairment, but exited prior to Kindergarten Student v. Buckeye Union School Dist. (OAH 2009)
  7. 7. 7 Kindergarten  Student’s behaviors increased Student v. Buckeye Union School Dist. (OAH 2009)
  8. 8. 8 1st Grade  Student’s behaviors increased Student v. Buckeye Union School Dist. (OAH 2009)
  9. 9. 9 2nd Grade  Student’s behaviors increased Student v. Buckeye Union School Dist. (OAH 2009)
  10. 10. 10 2nd Grade  IEP team found Student eligible due to specific learning disability  Behavior was to avoid academics  Offered five hours per week of SAI & an FBA  Parents consented to eligibility & FBA only Student v. Buckeye Union School Dist. (OAH 2009)
  11. 11. 11 2nd Grade  IEP team reconvened following FBA  Offered to increase SAI to 20 hours per week  Offered to develop goals within two weeks to address elopement and noncompliance  Offered to develop BSP Student v. Buckeye Union School Dist. (OAH 2009)
  12. 12. 12 Student Alleged  Denial of FAPE by  Failing to specifically describe the SAI  Offering to increase services prior to developing behavior goals or BSP Student v. Buckeye Union School Dist. (OAH 2009)
  13. 13. 13 The Law  Procedural Violations  Only amount to a substantive denial of FAPE if  Impede child’s right to a FAPE  Significantly impede parent’s opportunity to meaningfully participate; or  Cause deprivation of educational benefit
  14. 14. 14 The Law  Definition of IEP “A Written Statement”
  15. 15. 15 The Law  Content of IEP (including, but not limited to)  How the child’s disability affects involvement and progress in the general education curriculum  Statement of special education and related services and supplementary aids and services, program modifications or supports  Explanation of extent to which child will not participate with nondisabled children  Anticipated frequency, location, and duration of services and modifications
  16. 16. 16 The Law  Consent  Parent has been fully informed  Parent understands and agrees in writing
  17. 17. 17 The Law  Direct relationship between present levels, goals, and services
  18. 18. 18 The Law  Special Education Placement  “Unique combination of facilities, personnel, location or equipment”
  19. 19. 19 The Reveal Union v. Smith  Single, formal written offer of placement  Clear record  Eliminates factual disputes  Clarifies offer so parent can choose whether to complain However . . .
  20. 20. 20 The Reveal  No obligation to provide hour-by-hour account of SAI implementation  Increase in SAI based on sufficient information
  21. 21. 21 Lessons Learned  Specificity  Understandable language  Services follow goals
  22. 22. 22 Fact-Specific OAH Cases  No FAPE  St. Helena. No indication of push-in vs. pull-out  Shoreline. No description of level of service and accommodations  Jefferson. Accommodations written throughout document unclear  Cabrillo. Unclear whether services direct or consult  San Francisco. Must include correct percent in general education
  23. 23. 23 Fact-Specific OAH Cases  FAPE  Hacienda La Puente. Location does not equal placement  Montecito. No obligation to respond in writing to parents’ request for retention  San Francisco. No denial of FAPE by failing to describe existence of paraprofessional services in placement
  24. 24. 24 Student v. West Covina USD (OAH 2007)
  25. 25. 25 Issues Whether District failed to document 1. Accommodations, behavior plan, transition services, and ESY 2. Consideration of placement options 3. Notice of Parents’ right to consent to part of the IEP 4. Offer of placement with sufficient clarity to implement
  26. 26. 26 Just the Facts Ma’am. Just the Facts  16-year-old student  Parent lived in New Mexico, assigned education rights to grandmother  2006-07: District offered SDC for students not on diploma track  2007-08: District offered SDC for student who could be on diploma track
  27. 27. 27 Just the Facts Ma’am. Just the Facts For 2007-08, District offered  SDC for basic math, English, world history, and biology  Two 30-minute sessions per week of pull-out, group speech and language therapy  I.A. during P.E. “as needed”  ESY for two periods per day in SDC and 30- minutes per week of speech and language therapy  Recommendation for general education elective
  28. 28. 28 Student Alleged  2006-07  District failed to include accommodations, behavior plan, transition plan to high school, ESY services, and consideration of LRE  District failed to notify parents of right to consent to a portion of IEP  2007-08  District failed to consider parent request for NPS  District failed to provide PWN regarding request for NPS  Written offer of placement not clear
  29. 29. 29 The Law  Least Restrictive Environment To the maximum extent appropriate, children with disabilities are educated with children who are not disabled. Removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily IDEA, 20 U.S.C. § 1412(a)(5) (emphasis added)
  30. 30. 30 The Law  Partial Consent If the parent . . . does not consent to all of the components of the individualized education program, those components of the program to which the parent has consented shall be implemented so as not to delay providing instruction and services to the child Ed. Code, § 56346(e)
  31. 31. 31 The Law  Predetermination The test is whether the school district comes to the IEP meeting with an open mind, discusses options and considers the parents’ placement recommendations and/or concerns before the district makes a final offer
  32. 32. 32 The Reveal  Accommodations section of IEP left blank, resulting in a procedural violation that denied FAPE
  33. 33. 33 The Reveal  No requirement to develop a transition plan to high school, but IEP team must consider whether student had unique need for one (in this case, he did not)  Student required ESY, but IEP did not indicate frequency, location and duration of ESY
  34. 34. 34 The Reveal  Boxes checked on IEP indicating:  Supplementary aids and services considered in general education  Goals and objectives could not be met in general education w/o special education and/or related services  Placement necessary to meet goals and objectives  Placement located at school of residency However . . .
  35. 35. 35 The Reveal  IEP did not indicate why Student’s disability prevented his needs from being met in a less restrictive setting  "Considering a request requires deliberation and an examination of the situation in light of the information provided. It need not be extensive, but it requires a conscious approach with an open mind"
  36. 36. 36 The Reveal  By failing to include required information, district significantly impacted ability of parent to participate in the IEP process  The fact that mother instructed grandmother not to consent to any component of the IEP was irrelevant
  37. 37. 37 The Reveal  District did not fail to notify parents of right to consent to only a portion of IEP because that information included in procedural safeguards  Written offer of placement not clear because staff could not consistently testify about their understanding of the placement
  38. 38. 38 Lessons Learned  Determination of LRE requires discussion of supplementary aids and services, accommodations, and modifications  Include those items in IEP and make sure those items are transferred from assessment reports if appropriate
  39. 39. 39 Lessons Learned  Beyond statutory transition planning, IEP team should consider student’s needs when any change occurs and document whether student requires transition supports
  40. 40. 40 Lessons Learned  Describe ESY services with same level of specificity as the offer of placement
  41. 41. 41 Lessons Learned  Especially in the age of computerized IEPs, make sure team discusses placement options; it need not be extensive, but absent a discussion, the placement offer can appear predetermined
  42. 42. 42 Lessons Learned  Make sure team, including parents and staff, understand the placement offer  One test is to pretend that the student has moved to another state: Could a new teacher or provider understand and implement the IEP as written?
  43. 43. 43 Student v. Capistrano USD (OAH 2008)
  44. 44. 44 Issue  Whether the District failed to provide prior written notice of its refusal to implement services that were listed on an IEP
  45. 45. 45 Facts: Who is . . .  18-year-old student passed the CAHSEE, earned regular high school diploma  During sophomore year, parents requested Fast ForWord  District assessed, offered 30 sessions of Fast ForWord and 55-minutes per week of speech and language therapy
  46. 46. 46 Facts  District offered mileage reimbursement to NPA for Fast ForWord  Parents declined because of distance, requested non-certified agency  District offered to reimburse parents for Fast ForWord at preferred agency  Parents initially declined, but later agreed
  47. 47. 47 Facts  During the next school year, District offered  30 additional sessions of Fast ForWord via parent reimbursement  Math tutoring, three sessions per week
  48. 48. 48 Facts  Problems ensued  Parents no longer able to front Fast ForWord, but their agency became an NPA, District sent a master agreement  However, the agency would not provide services without District funding a licensing fee with Fast ForWord  District offered to fund licensing fee only if Student attended sessions
  49. 49. 49 Facts  And more problems  District inadvertently failed to provide speech and language therapy  District attempted to provide math tutoring, but Student refused because he didn’t like the tutor
  50. 50. 50 Student Alleged  District failed to give prior written notice of  Failure to provide Fast ForWord services  Failure to provide speech and language therapy  Failure to provide math tutoring
  51. 51. 51 The Law  Prior Written Notice (PWN)  Required when an agency  Proposes to initiate or change the identification, evaluation, or educational placement of a child or the provision of FAPE to the child; or  Refuses to initiate or change the identification, evaluation, or educational placement of a child or the provision of FAPE to the child
  52. 52. 52 The Law  Content of PWN  Description of action proposed or refused  Explanation of why  Description of evaluation procedure, assessment, record or report used as basis  Notice of availability of procedural safeguards and how to obtain  Sources for parents to contact  Description of other relevant factors
  53. 53. 53 The Law  IEP as PWN  As long as IEP contains all the required elements, IEP document can serve as PWN  Proposal to revise an IEP triggers right to PWN  PWN should be provided after the agency’s decision on a proposal or refusal, but a reasonable time prior to implementation
  54. 54. 54 The Reveal  Fast ForWord: District should have provided PWN of refusal to implement services, which resulted in a loss of educational benefit  Math tutoring: District attempted to implement service and Student refused; did not trigger right to PWN  Speech and language therapy: District denied Parents the right to meaningfully participate when it failed to notify them of its failure to implement
  55. 55. 55 Lessons Learned  PWN must be provided prior to a proposal or refusal that has already been discussed, but not yet implemented. It does not replace a required IEP team discussion
  56. 56. 56 Lessons Learned  Be wary of any difficulties in implementing a service. A refusal to implement a component of the IEP can trigger the right to PWN  If you make a mistake when implementing a service, respond in a child-centered manner that focuses on the needs of the child
  57. 57. 57 Student v. Orange County Health Care Agency (OAH 2008)
  58. 58. 58 Issues 1. Whether a public agency can make multiple offers of FAPE in private facilities pending acceptance 2. Whether special education supports in a residential placement must be documented on the IEP with specificity
  59. 59. 59 Facts  17-year-old girl, parents divorced  Behaviors escalated in high school, father placed her at a residential facility in Provo, Utah  District assessed, found her eligible under ED
  60. 60. 60 Facts  CMH subsequently assessed, determined that Student required residential placement  CMH could not consider Provo, Utah placement for the following reasons:  Utah required student to leave at 18; Student might require longer stay  Provo was lock-down facility; Student required a more nurturing approach  Provo did not have capability to implement transition plan  Provo was a for-profit facility
  61. 61. 61 Facts  At IEP meeting, CMH offered four possible placements  CMH requested parent’s authorization to send applications; parent refused  CMH obtained acceptance from facility in Laramie, Wyoming based on general description  CMH provided letter to parent offering Laramie placement
  62. 62. 62 Student Alleged  CMH predetermined placement at Laramie facility and failed to consider parent’s request for Provo facility  CMH failed to make a single, formal offer of placement  CMH failed to describe the frequency, location, and duration of special education and related services offered at Laramie facility
  63. 63. 63 The Law  As long as program and/or services meet student’s unique needs, school districts have discretion to select program or service providers  School districts deny parents the right to meaningfully participate in the IEP process when they provide multiple offers of placement and require the parents to select one
  64. 64. 64 The Reveal  No Predetermination  School district staff facilitated participation of parents and staff at Provo--we hope CMH sent a card  CMH’s refusal to consider Provo facility was based on statutory prohibition against contracting with for- profit residential facilities
  65. 65. 65 The Reveal  No offer of placement until specific facility identified and communicated  CMH sought to shorten the application process by offering four options and seeking acceptance concurrently  CMH completed the offer by sending notice within a reasonable time after options presented
  66. 66. 66 The Reveal  Frequency, location, and duration  CMH denied parents the opportunity to participate in the IEP process by failing to identify the frequency, location, and duration of special education and related services
  67. 67. 67 Lessons Learned  School district staff must consider, consider, and then consider  However, after considering, the child is entitled to your professional recommendation  Offer what you believe is FAPE, not what you believe the parents will accept
  68. 68. 68 Lessons Learned  When offering placement in facilities that require acceptance, remember that the offer is not completed until you make a single, formal offer of placement in a facility that will accept the student Do it in an IEP team meeting!
  69. 69. 69 Lessons Learned  Room and board is a related service. It must relate to a special education placement  IEP team should consider whether a child requires room and board to benefit from that placement, not the other way around
  70. 70. 70 Lessons Learned  Same level of specificity for  Special education and related services at private facilities  Special education and related services at public facilities
  71. 71. 71 Conclusion  The written offer --it's all about clear communication with the parents  And remember, if staff do not uniformly understand the placement, most likely the parents do not either
  72. 72. 72 Time for Questions
  73. 73. 73 Time for Lunch! Be back here by 1:00 p.m.

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