Transcript IDEA and Charter Schools January 19, 2007

Ensuring Students with
Disabilities are Served
JENNIFER SEGAL
[email protected]
MIKE BENDER
[email protected]
BRUSTEIN & MANASEVIT, PLLC
FALL FORUM 2014
Topics Covered
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 Discipline
 Response to Intervention
 IEP Teams
 Documentation
 Payment for related services and residential
treatment
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Legal Resources
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• IDEA Website - http://idea.ed.gov/
• Code of Federal Regulations: 34 CFR Part 300
•
•
http://www.ecfr.gov/cgi-bin/textidx?tpl=/ecfrbrowse/Title34/34cfr300_main_02.tpl
http://idea.ed.gov/download/finalregulations.pdf
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DISCIPLINE
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What To Do When a Child is Disciplined?
34 CFR §§ 300.530 – 300.536
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1. Is the child identified as a child with a
disability?
o NO = No IDEA protections. (34 CFR § 300.534(d))
 Has an evaluation been requested after or during discipline?
 If yes, then expedited evaluations
 Stay Put does not apply. Child remains where placed by the LEA.
o YES = Determine if Change of Placement
o NO, BUT the public agency had knowledge that the child was a
child with a disability before the behavior occurred = Determine
if Change of Placement. (34 CFR § 300.534(a-b))
• Parent expressed in writing that child needed special education services
• Parent requested an evaluation
• School personnel expressed specific concerns about a pattern of behaviors
to the director of special education or other supervisory personnel
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Was the Removal a Change of Placement?
34 CFR §§ 300.530 – 300.536
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2. Was the Removal a Change of Placement?
 Based on “Unique Circumstances of Child” (34 CFR §
300.530(a))
 Removal
≠ change of placement (34 CFR § 300.536)
 10
consecutive school days or less
 Series of short-term removals that are not a pattern
(even if greater then 10 days)

Determined by the public agency, but subject to review
through due process (34 CFR § 300.536 (a)(2))
• (a) Length of each removal; (b) Total time removed;
(c) Proximity of removal; (d) Behavior not substantially similar;
etc.
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Was the Removal a Change in Placement?
34 CFR §§ 300.530 – 300.536
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 Removal
= change of placement (34 CFR § 300.536)
 Exceeds 10 consecutive school days
 Series of short-term removals that are a pattern
 Special Circumstances
 45-day removal – drugs, weapons, serious bodily
injury to another (34 CFR § 300.530(g))
 Hearing officer removal - 45-day removal
requested by LEA through due process bc
substantially likely to injure self or others in
current placement (34 CFR § 300.532)
 Parent
Notification (34 CFR § 300.530(h))
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Case Study #1: 45 Day Removal
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D.R. is a second grader with an IEP and a primary disability of ED.
Last Tuesday, D.R. and a friend were drawing during an after-school
enrichment program held by the school. D.R. realized that small
pencil sharpener had a blade in it. After a little finagling, D.R. was
able to remove this blade and began to pretend to have a sword fight
with his friend. The play sword-fighting quickly turned south and
D.R. cut his friend’s finger. D.R.’s friend required three stitches.
Believing that D.R. had used the blade as a weapon to cause serious
bodily injury, the school removed D.R. for 45 days.
Question: Was the school justified in removing D.R. for 45
days?
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Was the Removal a Change in Placement?
34 CFR §§ 300.530 – 300.536
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o Change of Placement?
 No: Done (document decision) (possible exception 34
CFR § 300.530(d)(4))
 Yes: Manifestation Determination (34 CFR §
300.530(e));
 Functional Behavior Assessment; and
 Behavior Intervention Plan (34 CFR §
300.530(d)(1)(ii), (f)(1)(i))
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A Manifestation of the Child’s Disability?
34 CFR §§ 300.530 – 300.536
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3. Was the behavior a Manifestation of the
Child’s Disability? (Decided By IEP Team)


No – Stay Put does not apply (300 CFR § 300.530(c))
Yes – Manifestation Determination (300 CFR § 300.530(f))
Stay Put: Child Remains in School
 Exceptions 45-Day Removal

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Case Study #2: MDR
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A.D. is a student diagnosed with ADHD and found eligible for special
education and related services with a primary disability of OHI. One day in
class, A.D. begins to repeatedly poke another student with a pencil, which
causes a fight. The teacher sends A.D. to the principal’s office to reset.
Within ten minutes of entering the principal’s office, A.D. begins talking
loudly with another student and is removed to an empty special education
meeting room.
While in the SPED meeting room, A.D. sits calmly for 10 minutes but then,
angry at being sent out twice, gets up and flips over the SPED director’s
chair. He is then calm for another 10 minutes before knocking everything
except the laptop off the director’s desk. Once discovered, A.D. is suspended
for 3 days, which brings his total days suspended over 10.
Question: Was the student’s behavior a manifestation of the student’s
disability?
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Are Services Required?
34 CFR § 300.530(d)(4) & (d)(5)
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4. Are services required?
o If not a change of placement: MAYBE
o 10 day rule: no services required for first 10 school
days of disciplinary removal in school year unless
services are provided to a child without disabilities who
is similarly removed.
 LEA can always decide to provide services even when not required
o If a change of placement: YES (34 CFR § 300.530(d))
 IEP team decides on services (allow child to continue to participate

in general education curriculum, although in another setting and
progress on IEP); services mandatory
45-day removal, services may be determined by Hearing Officer
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Disciplinary Options
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Identified as Child
with a Disability?
Yes
No, BUT
No IDEA Protections
Change of Placement?
No
Done.
Document!
Yes – Provide Services and
hold MDR.
Manifestation of
Disability?
No
No Stay
Put.
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No
Yes
Stay Put.
Best Practices
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 Written policies and procedures
 Staff training on policies and procedures
 Regular communication between special education
department and administration (or staff responsible
for discipline)
 Established forms and form letters
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Expedited Hearings
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o Expedited Hearing? (34 CFR § 300.532)
 Parent Appeals Manifestation Determination
 LEA Requests 45-day removal by hearing officer
o Timeframes?
 Hearing – 20 school days of date complaint filed
 Resolution meeting (unless waived) w/in 7 days of date complaint notice
received
 Hearing proceeds, unless matter resolved w/15 days of date complaint
received
 Decision – 10 school days after hearing
o Placement during Appeal? (34 CFR § 300.533)
 Child must remain in the alternative education setting
pending the decision of the hearing officer or until the
expiration of the 45-day placement or disciplinary action,
whichever occurs first.
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Discipline and Civil Rights
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 “[E]vidence of significant disparities in the use of discipline and
aversive techniques for students with disabilities raises particular
concern for the Departments.”


Additionally, SWDs under IDEA and 504 represent 14% of students, but represent 76% of
students who are physically restrained by adults in their schools.
See ED’s Civil Rights Office and DOJ Guidance, January 2014
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Response to Intervention (RTI)
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Response to Intervention (RTI)
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 Process for determining that a child is a child with a
specific learning disability based on a child’s response to
scientific, research-based intervention.
 Why is RTI included in IDEA?
To ensure that underachievement in a child suspected of
having specific learning disability (SLD) is not due to lack of
appropriate instruction
 Intent of Congress to more accurately distinguish between
children with SLDs from those whose learning difficulties
could be resolved with more specific, scientifically based,
general education interventions.

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Response to Intervention (cont.)
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 What about RTI for determining other disabilities?

Court found that use of RTI did not relieve obligation to:
 (a) evaluate the Student for other IDEA disabilities, such
as Other Health Impairment, including ADHD;
 (b) use a variety of assessment tools; and
 (c) complete the evaluation within the timeline
established by IDEA and its implementing regulations.
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Response to Intervention (cont.)
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 If you use RTI Strategies, LEAs must promptly
request parental consent to evaluate a child if the
child has not made adequate progress after an
appropriate period of time.
 However, the regulations do not specify a timeline for
using RTI or define “adequate progress.”
 Timeline will vary depending on circumstances but
generally not acceptable to wait several months
* Parent may request an evaluation at any time during the
RTI process (RTI does not replace evaluations)
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Response to Intervention (cont.)
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o Allowable uses of IDEA funds for RTI:
 CEIS funds may be used in coordination with ESEA funds, but
must supplement and not supplant ESEA funds for those
activities and must not support students already identified as
students with disabilities (IDEA ARRA guidance)
 CEIS funds may be used for behavioral interventions for nonidentified students who need additional support, as part of
school climate reform (ED Letter, Sept 2013 on maximizing
flexibility)
 If IDEA consolidated in schoolwide plan, may use consolidated
IDEA program funds to implement RTI (IDEA ARRA guidance)
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Best Practices
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 Written policies and procedures (including
definitions of “adequate progress” and “appropriate
period of time”)
 Training to staff on policies and procedures

Provide some training even to staff not directly involved
 Regular communication between RTI staff and
Special Education Department
 Clear communication to parents regarding what RTI
is and their child’s progress
 Take RTI meeting notes
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IEP TEAM MEETINGS
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Types of Meetings
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 Eligibility
 IEP Development
 Annual
 MDR
 Other
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Responsibilities of IEP Teams
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 Review evaluations and data
 Determine eligibility
 Develop IEP



Placement
Services
Supports
 Review IEP annually and when necessary
 Manifestation determination when necessary

Appropriate services if a change in placement is warranted
 Address other concerns as need arises
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IEP Team Members
34 C.F.R. § 300.321
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 CORE MEMBERS




Parent
At least 1 regular ed
teacher, if child
participating
At least 1 special ed
teacher/provider
LEA representative


LEA can designate member
Individual who can
interpret evaluation
results
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 MAY BE REQUIRED
 Individuals
with special
knowledge or expertise
on child
 Related services
personnel
 Child, when appropriate
 Invite transition service
agency representatives
 Invite Part C service
coordinator/rep, if
parent requests
Who Can Miss an IEP Meeting?
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 Required members may be absent:


For all or part of meeting, if
LEA and parent agree in writing
 Meeting without parent:

Permitted, but need documentation of attempts to arrange
mutually agreed on time and place. 34 C.F.R. § 300.322(d)
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What if a Member Misses an IEP Meeting?
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 If the missing IEP team member’s area or related
service is not modified or discussed

No input is needed
 If the missing IEP team member’s area or related
service will be modified or discussed

Member must provide written input on development of the IEP
prior to the meeting
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Best Practices
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 Written policies and procedures
 Training staff on policies and procedures
 Ensure an LEA representative with decision making
authority is present
 Hold meeting if a new concern arises or services
change – don’t wait for the annual review meeting
 Maintain documentation




Meeting invitation
Attempts to schedule meeting (if no parent)
Written input if appropriate
Meeting notes
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Documentation
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“I’m a hoarder. For me, documentation has
always been key, and I’ve kept everything from
my past.”
– Diane Keaton
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The Basics
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 IEPs
 Evaluations
 Meeting Notes
 Service Tracking Logs
 See EDGAR 76.731 (grantees and subgrantees must
maintain records to demonstrate compliance with all
program requirements)
 Where and how are these documents
maintained?
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Prior Written Notice
34 C.F.R. § 300.503
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 Must be given to parents if the LEA proposes or
refuses to initiate or change the following:




Evaluation of a child,
Identification of a child,
Educational placement of a child, or
Provision of FAPE to a child.
 Notice Must Include: reasons for action or refusal
and include available procedural safeguards
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Progress Data
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 Progress Reports
 Detailed information on progress (or lack of progress) on each
goal
 How often?
 Testing Data
 State Tests
 Academic Achievement
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Behavior Data
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 Behavior tracking logs
 Behavior Intervention Plan
 Incident Reports
 Suspension/Expulsion records
 Letters re: Discipline
 Align general disciplinary communications with IDEA
requirements
 Clearly indicate what the process is for students with
disabilities
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Communication with Parent
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Letters
Phone Log
Emails
The single biggest
problem in communication
is the illusion that it has
taken place.
- George Bernard Shaw
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Transmitting Student Records
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 Generally, follow Family Educational Rights and
Privacy Act (FERPA)
 Except if student transfers to a private school

LEA must obtain parental consent prior to releasing personally
identifiable records to the private school
 Parent request for student records
 SEA/LEA has 45 days to respond
 If third party (attorney/advocate) is requesting records, must
have release signed by parents
 What must be provided?
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Best Practices
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 Written policies and procedures
 What must be retained?
 Where are records retained?
 Training staff on policies and procedures
 Established forms and other documents
 Monitoring records and data
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Payment for Related Services and
Residential Treatment
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Related Services
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 Transportation, developmental, corrective and other
supportive services required to help a disabled child
benefit from special education



Includes: interpreting services, physical and occupational
therapy, speech-language pathology and audiology, counseling,
therapeutic recreation, etc.
Excludes: surgically implanted medical device or replacement
34 C.F.R. § 300.34
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Related Services
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• To determine whether a service is a related service,
courts will consider:
1.
2.
whether the service is required to enable the child to
receive an educational benefit, and
if it is excluded as a medical service.
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Related Services
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 Responsibility of public agency to provide service to
student if the court determines:
the service is required for the student to receive an
educational benefit; and
 it does not fall within the medical exception

 Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980)
(finding that Clean Intermittent Catheterization
(CIC) fell within the statutory definition of related
services because without CIC the child could not be
present in the classroom at all and thus could not
benefit from her special education).
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Related Services
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 If the service is:


Not educational in nature; and
Does not impact the student’s ability to benefit from his or her
education,
 Such service would not be considered a related service
that a District would have to provide under the IDEA.
 Fetto v. Sergi, 181 F. Supp. 2d 53, 60 (D.Conn. 2001) (hearing officer found
that several wrap-around services, including respite care in the home and a
community mentor, were not educational in nature and therefore the
District was not required to pay for such services)
 District of Columbia Public Schools, 110 LRP 30885 (July 30, 2009)
(hearing officer found that wrap-around services, including counseling and
community support services were required for student to be successful in
attending school and obtaining an educational benefit)
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Residential Treatment
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 In the context of residential placements, where a related
service is necessary for an educational purpose, it is
reimbursable under the IDEA. Where the related service
has a predominantly medical purpose, it is not
reimbursable.

Kruelle v. New Castle County School District, 642 F.2d 687 (3rd Cir.
1981); 34 C.F.R. 300.104.
 Courts have found that where the requirement for a
residential placement based on medical, social or
emotional problems that are segregable from the
learning process, the residential treatment was for a
medical purpose and therefore not reimbursable.

Mary T. v. Sch. Dist. or Philadelphia, 575 F.3d 235 (3rd Cir.
2009)(citing Kruelle, 642 F.2d 687).
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Educational Benefit?
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 Educational Benefit: is the IEP likely to produce
progress, not regression, and does the IEP afford the
student with an opportunity greater than mere trivial
advancement?
 M.K. ex rel. Mrs. K v. Segri, 554 F. Supp. 2d 201, 222 (D.Conn. 2008) (the
student had significant behavior problems at home but continued to make
satisfactory academic progress in school, the court found that the student’s
residential placement was not a related service for which the school district
could be held financially responsible)
 Mrs. B. v. Milford Bd. of Educ., 103 F.3d 114 (2d Cir. 1997) (the student’s
academic regression was primarily due to student's emotional issues which
could not be dealt with outside of a residential setting, the court found that
the District was required to pay for the entire cost of the student’s
residential placement)
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Best Practices
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 Written policies and procedures
 Training to staff on policies and procedures
 Continuum of services
 State/District policies on high cost/highly restrictive
services
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