Transcript IDEA and Charter Schools January 19, 2007

How to Serve Children with
Disabilities in a Compliant
Manner
Erin Auerbach
[email protected]
Jennifer Segal
[email protected]
Brustein & Manasevit, PLLC
Spring 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
• 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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Disciplinary Options
34 CFR §§ 300.530 – 300.536
What to do when a child is disciplined:
1. Is the child identified as a child with a disability?
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NO = No IDEA protections. (34 CFR § 300.534(d)).
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Has an evaluation been requested after or during discipline?
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If yes, then expedited evaluations
Stay Put does not apply. Child remains where placed by the LEA.
YES = Determine if Change of Placement
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)).
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Parent expressed in writing to supervisory or administrative personnel, or a
teacher of the child, that the child is in need of special education and related
services
Parent requested an evaluation
School personnel expressed specific concerns to the director of special
education or other supervisory personnel
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Disciplinary Options (con’t)
34 CFR §§ 300.530 – 300.536
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))
• Length of each removal;
• Total time removed;
• Proximity of removal;
• Behavior not substantially similar; etc.
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Disciplinary Options (con’t)
34 CFR §§ 300.530 – 300.536
• Removal = change of placement (34 CFR § 300.536)
• Exceeds 10 consecutive school days
• Series of short-term removals that are a pattern
• 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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Disciplinary Options (con’t)
34 CFR §§ 300.530 – 300.536
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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Disciplinary Options (con’t)
34 CFR §§ 300.530 – 300.536
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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Disciplinary Options (con’t)
34 CFR § 300.530(d)(4) & (d)(5)
4. Are services required?
• If not a change of placement: MAYBE
• 10 day rule: no services required for first 10 school days of
disciplinary removal in school year
• LEA can always decide to provide services even when not
required
• “So as to enable the child to continue to participate in the
general education curriculum, although in another setting,
and progress toward meeting goals in child’s IEP”
• 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
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• Exception: 45 day removal
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Best Practices
• 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 Hearing Timeframes
WHEN? (34 CFR § 300.532)
• Parent Appeals Manifestation Determination
• LEA Requests 45-day removal by hearing officer
• 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
PLACEMENT DURING APPEAL (34 CFR § 300.533)
• The 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
• “[E]vidence of significant disparities in the use of discipline
and aversive techniques for students with disabilities raises
particular concern for the Departments.”
• IDEA-eligible students represent 12% of all students, but 19% of
students suspended in school, 20% of students receiving out-ofschool suspension once, 25% of students receiving multiple outof-school suspensions, 19% of students expelled, 23% of students
referred to law enforcement, and 23% of students receiving
school-related arrest. 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)
• 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
• Congress included this in hopes that it would, more
accurately, distinguish between children who truly have
SLDs from those whose learning difficulties could be
resolved with more specific, scientifically based, general
education interventions.
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RTI (cont.)
• What about RTI for determining other disabilities?
• “The undersigned concludes that Respondent’s use of the SIT,
which is Respondent’s version of RTI, however well-intentioned,
did not relieve Respondent of its obligations (a) to evaluate the
Student for other IDEA disabilities, such as Other Health
Impairment, including ADHD; (b) to use a variety of assessment
tools; and (c) to complete the evaluation within the timeline
established by IDEA and its implementing regulations.”
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RTI (cont.)
• 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.”
• ED says it varies depending on the specific circumstances in
each case.
• 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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RTI (cont.)
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
• 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
• 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
• 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
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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?
• 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 is Needed if a Member Misses an IEP Meeting?
• 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
• 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
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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
• Must be given to parents if the LEA proposes or refuses
to initiate or change the following:
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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
• 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
•Letters
•Phone Log
•Emails
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Transmitting Student Records
• 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
• 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
• 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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To determine whether a service is a related service,
courts will consider:
1. whether the service is required to enable the child
to receive an educational benefit, and
2. if it is excluded as a medical service.
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• If the court determines that the service is required for the
student to receive an educational benefit and does not fall
within the medical exception, it becomes the responsibility of
the public agency to provide the service to the student.
• 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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• Where a 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
• 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 is 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: 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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This presentation is intended solely to provide general information
and does not constitute legal advice or a legal service. This
presentation does not create a client-lawyer relationship with
Brustein & Manasevit, PLLC and, therefore, carries none of the
protections
under
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D.C.
Rules
of
Professional
Conduct. Attendance at this presentation, a later review of any
printed or electronic materials, or any follow-up questions or
communications arising out of this presentation with any attorney
at Brustein & Manasevit, PLLC does not create an attorney-client
relationship with Brustein & Manasevit, PLLC. You should not take
any action based upon any information in this presentation without
first consulting legal counsel familiar with your particular
circumstances.
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