1. 1
All Things Considered
Recent Decisions on the
Written Offer of Placement
and Follow Through

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
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
Student v. Buckeye Union
School District (OAH 2009)

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
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
Kindergarten
 Student’s
behaviors
increased
Student v. Buckeye Union School Dist. (OAH
2009)

8. 8
1st
Grade
 Student’s
behaviors
increased
Student v. Buckeye Union School Dist. (OAH
2009)

9. 9
2nd
Grade
 Student’s
behaviors
increased
Student v. Buckeye Union School Dist. (OAH
2009)

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
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
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
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
The Law
 Definition of IEP
“A Written Statement”

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
The Law
 Consent
 Parent has been fully informed
 Parent understands and agrees in writing

17. 17
The Law
 Direct relationship between present levels,
goals, and services

18. 18
The Law
 Special Education Placement
 “Unique combination of facilities, personnel,
location or equipment”

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
The Reveal
 No obligation to provide hour-by-hour
account of SAI implementation
 Increase in SAI based on sufficient
information

21. 21
Lessons Learned
 Specificity
 Understandable language
 Services follow goals

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
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
Student v. West Covina USD
(OAH 2007)

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
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
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
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
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
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
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
The Reveal
 Accommodations section of IEP left blank,
resulting in a procedural violation that
denied FAPE

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
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
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
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
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
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
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
Lessons Learned
 Describe ESY services with same level of
specificity as the offer of placement

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
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
Student v. Capistrano USD
(OAH 2008)

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
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
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
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
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
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
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
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
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
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
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
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
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
Student v. Orange County Health
Care Agency (OAH 2008)

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
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
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
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
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
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
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
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
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
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
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
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
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
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
Time for
Questions

73. 73
Time for Lunch!
Be back here by 1:00 p.m.