Avoiding IDEA Due Process Proceedings (or winning when you do get there)

1. Avoiding IDEA Due Process Proceedings(or winning when you do get there) Presented by Ernest G. Trakas (314) 880-3600 etrakas@tuethkeeney.com

2. I. Meaningful Participation • Notice • IEP Meetings • District Actions (ID; Evaluation; Placement; FAPE) • Parent Input and Involvement

3. Meaningful Participation, Cont’d • Notification • IEP Meeting Notice must include: • Purpose • Time/Location • Attendees

4. Meaningful Participation, cont’d • Notification, cont’d • IEP Meeting Notice required: • Identification • Evaluation • Placement • FAPE

5. Meaningful Participation, cont’d • Notification, cont’d • IEP Meeting Notice • No specific time line • Reasonableness standard • Adequate time to prepare/make arrangements

6. Meaningful Participation, cont’d • Notification, cont’d • IEP Meeting Notice – Ensuring Parent Participation • LEA must keep record of attempts to arrange mutually agreeable time/place for meetings: • Telephone logs of call made, attempted, and results • Copies of correspondence to parent and responses • Memoranda on all visits to home, place of employment, and results

7. Meaningful Participation, cont’d • Notification, cont’d • District Actions (NOA): ID: Evaluation; Placement; FAPE • Proposed action/refusal • Explanation • Basis of decision • Options • Relevant factors

8. Meaningful Participation, cont’d • Input and Involvement • Parent Attendance • Mutually agreeable time/place • Evening/Weekend meetings • Obligation to “convince”

9. Meaningful Participation, cont’d • Input and Involvement, cont’d • IEP Meeting Notice – Parent Attendance • Alternatives to actual attendance • Conference calls • Video conferencing

10. Meaningful Participation, cont’d • Input and Involvement, cont’d • Staff Attendance • Regular Education (actual teacher, works with or has knowledge of student) • Special Education • Counselor • LEA

11. Meaningful Participation, cont’d • Input and Involvement, cont’d • Exceptions to Staff Attendance • Written Agreement • Written Input (before IEP meeting) • Written Consent/Acceptance of input

12. Meaningful Participation, cont’d • Input and Involvement, cont’d • Consideration of Parent Input* • IEEs • Placement Options • Queries *Remember: Consider does not mean acquiesce

13. Meaningful Participation, cont’d • Input and Involvement, cont’d • Consensus at IEP meetings • Not a democracy • Equal participation does not equal veto power • Consensus is general agreement by most team members • Duty to formulate IEP despite lack of consensus • NOA • Parent access to mediation/due process

14. Meaningful Participation, cont’d • Input and Involvement, cont’d • “Equal Participation” – A Definition • Participating in the discussion of student’s need for special education and related services • Joining with members of IEP team to decide services necessary to deliver FAPE Notice of Interpretation, Appendix to 34 CFR Part 300, Question 5 (1999 regulations)

15. Meaningful Participation – You be the Judge • Previous IEP meetings regarding student had been held either before or after instructional day (7:45 a.m. to 2:30 p.m.). • Parent sent written notice indicating she was only available to attend IEP meetings during school hours due to “scheduling conflicts.” • Parent requested IEP meeting from 7:30 a.m. to 9:00 a.m. and indicated that her days off were March 5, 15, and 19, and that she was not available any other time(s).

16. Meaningful Participation – You be the Judge, cont’d • After work, parent required to care for sibling, also a special needs child. • Both children have numerous after-school appointments with service providers.

17. Meaningful Participation – You be the Judge, cont’d • School District’s policy indicates that IEP meetings should be scheduled outside of the instructional day to minimize disruption • District policy can be circumvented (14 IEP meetings were scheduled between 8:15 a.m. and 2:30 p.m. previous SY) • District attempted to accommodate parent: agreed to start meeting at 3:15 p.m. as requested by parent; offered to start meeting at 7:30 a.m.; offered to arrange telephone conference; offered series of shorter meetings scheduled before and after instructional day.

18. Meaningful Participation – You be the Judge, cont’d • ISSUE: Did scheduling of IEP meeting deny meaningful participation? a. Yes. District was not sensitive to be documented needs of parent. b. Yes. District had not made sufficient effort to schedule meeting at “mutually agreeable” time and place. c. No. Parent cannot unilaterally set time and place for IEP meeting. d. No. Parent offered no reasonable explanation for refusal to accept any of the alternatives offered, and District displayed both good faith and flexibility in dealing with parent. Hearing Panel Decision: ____ Bangor Sch. Dept., IDELR 27 (SEA ME 2002)

19. Meaningful Participation – You be the Judge, cont’d • OHI high school student with autistic-like behaviors • Following incident where student left school at mid-day, IEP team amended IEP requiring an aide during entire school day. • District assigned female paraprofessionals as aides. • Problems occurred involving loss of gym clothes for PE • Parents claimed school failed to provide adequate supervision in boy’s locker room, and made repeated requests that male aides be assigned. • Parents also claimed female aide could not meet IEP requirement of 1:1 services for entire school day.

20. Meaningful Participation – You be the Judge, cont’d • ISSUE: Did refusal to assign male aide result in failure to implement IEP? a. No. District has complete discretion in making aide assignments. b.Yes. Female aide created a more restrictive environment denying FAPE. c. No. Female aide was able to perform all primary tasks, such as assisting with academics, transitioning from class to class, and reminding student about books, and other materials. d.Yes. Aide who could not accompany student in bathroom could not be fully effective. Hearing Panel Decision: ____ Dublin Unified Sch. District., 102 LRP 11497 (SEA Ca 2002).

21. Meaningful Participation – You be the Judge, cont’d • Student transferring from private school. • District failed to invite private school teachers to initial IEP meeting after parent request. • District prepared an IEP before meeting without parent involvement. • District refused to consider alternatives to prepared IEP at meeting.

22. Meaningful Participation – You be the Judge, cont’d • ISSUE: Did District deny parent meaningful participation? a. No. Appropriate District personnel attended IEP meeting. b. Yes. Failure to have teachers that had knowledge of and had worked with student denied participation. c. No. Preparation of draft IEP does not equate to predetermination. d. Yes. Refusal to consider alternatives failed to fulfill goal of parental participation, and denied individualized programming. Decision and Remedy: ____ W.G. v. Bd. Of Trustees of Target Range Sch. Dist. No. 23 (9th Cir. 1992).

23. Meaningful Participation – You be the Judge, cont’d • Parent attended IEP meeting by telephone. • District did not provide access to student’s file prior to meeting.

24. Meaningful Participation – You be the Judge, cont’d • ISSUE: Was parent denied meaningful participation? a. No. Telephonic participation is acceptable. b. Yes. Without access to student’s records/file parent could not participate. c. No. Parent was aware of child’s performance under current IEP and access to records was not necessary for parent to participate. d. Yes. Conducting meeting with parent physically present was inappropriate and resulted in denial of meaningful participation.

25. Meaningful Participation – You be the Judge, cont’d Decision and Remedy: ____ Bd. of Educ. N.Y. City (SEA NY 2001).

26. II. LEGALLY COMPLIANT IEP’S • Discuss/Decide all elements of IEP at IEP meeting. • Include ALL programming/services required for FAPE. • Enumerate all required elements of IEP in document. • ALWAYS consider ESY needs • Decide Placement ONLY after team has developed complete IEP.

27. LEGALLY COMPLIANT IEP’S (Cont.) • Provide programming/services in accordance w/implementation timelines. • Communicate IEP to all involved in its implementation.

28. LEGALLY COMPLIANT IEP – YOU BE THE JUDGE • IEP team for student w/Asperger Syndrome met, but failed to complete IEP. • Incomplete IEP included G/O for reading & math only, and did not provide details for specifically designed instruction, functional behavior, or a BIP. • Parent wanted meeting to focus on placement options outside District. • District proposed combination of autistic support & learning support on part-time basis within District.

29. LEGALLY COMPLIANT IEP – YOU BE THE JUDGE (Cont.) • ISSUE: Did District offer FAPE despite lack of formalized IEP? a. Yes. No continuing FAPE obligation where parent does not cooperate w/IEP team decisions. b. No. Placement NOA was inappropriate in face of parent objection. c. Yes. Parent insistence of private placement inappropriate relieving District of obligation to complete IEP. d. No. District could not meet FAPE obligation with unfinished IEP.

30. LEGALLY COMPLIANT IEP – YOU BE THE JUDGE (Cont.) Hearing Panel Decision: _____ Philadelphia City Sch. Dist., 44 IDELR 234 (SEA PA 2005).

31. LEGALLY COMPLIANT IEP – YOU BE THE JUDGE (Cont.) • 18 yr. Old 9th grader w/LD in language & math placed in alternative program following allegations of sexual misconduct. • Manifestation Determination found behavior unrelated to student’s disability. • Alternative program required student to attend full instruction day. • District reduced student’s school day from 4 hrs. to 3.5 hrs. to accommodate scheduling needs of teacher.

32. LEGALLY COMPLIANT IEP – YOU BE THE JUDGE (Cont.) • District also reduced number of credit hrs. student needed to graduate. • Reduction in hrs. resulted in less instruction & Sp. Ed. Time, and delivery of Sp. Ed. Gen. Ed. Teacher & resource teacher (IEP required certified Sp. Ed. Teacher).

33. LEGALLY COMPLIANT IEP – YOU BE THE JUDGE (Cont.) • ISSUE: Did abbreviated schedule result in denial of FAPE? a. Yes. IEP team did not determine need for shortened school day, and reduction made w/out regard to student’s individual needs. b. Yes. Alternative placement must mirror all instruction and services in regular placement. c. No. Upon determination that behavior was not manifestation of disability District not required to provide any instruction, and instruction provided was more than required.

34. LEGALLY COMPLIANT IEP – YOU BE THE JUDGE (Cont.) d. No. Alternative placement need not provide quantity or substance of services required by IEP. Hearing Panel Decision: ____ Webb Consolidated Sch. Dist., 43 IDELR 25 (SEA TX 2004).

35. III MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT • Manifestation Determination • Within 10 days of DECISION to change placement. • Parent & relevant members of IEP team. • Review ALL relevant information (IEP, Tchr. Observation data, parent provided information). • Determine if conduct:

36. MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT (Cont.) • Caused by or had a direct and substantial relationship to disability. • Direct result of failure to implement IEP.

37. MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT (Cont.) • Manifestation Determination NOT required: • OSS 10 school days of less • Special Circumstances (IAES) • Weapons • Drugs • Serious Bodily Injury

38. MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT (Cont.) • Disciplinary Changes in Placement • Decision to suspend/expel • Administration accepts recommendation for additional period of OSS • Current OSS takes student beyond 10 day limit • M/D w/in 10 Days of Decision • Expedited Due Process Rights

39. MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT – YOU BE THE JUDGE • 12 yr. old w/ ADHD & ODD; difficulty w/peer relations and history of aggression and anxiety. • Student involved in altercation w/other student and struck in head. • Student retaliated by stabbing other student w/metal tipped Sharpie marker in the shoulder. • Marker went through two shirts & left a 3 inch mark that pulled skin away from area. Wound cleaned & treated topically. • Student admitted stabbing other student and stated that he wished he could have used a “harder weapon,” then he wanted other student “unconscious on the floor,” and indicated hewould do it again.

40. MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT – YOU BE THE JUDGE (Cont.) • Principal issued 5 day OSS w/recommendation for 45 day IAES at student’s previous therapeutic day school (grades 1-4). • Principal stated that Sharpie was possible as sharp as a pair of scissors and constituted a “weapon” under the IDEA. • Issue: Was placing student in IAES appropriate? a. Yes. District was obligated to place student in IAES pursuant to IDEA’s LRE continuum.

41. MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT – YOU BE THE JUDGE (Cont.) b. No. Marker did not qualify as a weapon and District’s only options were OSS or expulsion. c. Yes. District must assure safety of all students and student’s history merited intervention. d. No. OSS w/out M D violated student’s rights under IDEA. IEP team should have revised IEP to include BIP. Hearing Panel Decision: _____ Prospect Hts. Sch. Dist. #23, 105 LRP 2607 (SEA IL 2004).

42. III MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT – YOU BE THE JUDGE (Cont.) • Seventh grade student w/ADHD enrolled in 2001. • Parent presented medical eval., including information regarding dx. & meds. • Over succeeding two years, parent expressed concerns about grades & behavior to school principal. • Student was disruptive, impulsive & exhibited attention problems, and was disciplined by teachers frequently. • At beginning of 7th grade, student received five disciplinary reports.

43. MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT – YOU BE THE JUDGE (Cont.) • Sept. 2003, Art teacher completed Sp. Ed. Referral form listing concerns. • CARE team met, but because student was progressing academically determined no further action required. • Second CARE team meeting due to teacher concerns about difficulty completing home work & inattention in class. • CARE team then developed plan calling for parent contact, access to after school homework club, contacting physician re meds., and writing assignments in student’s agenda.

44. MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT – YOU BE THE JUDGE (Cont.) • Nov. 2003, student involved in an incident and expelled • Issue: Was expulsion improper? a. Yes. District should have disciplined student as qualified individual under Sec. 504 & applied State discipline procedure. b. No. Because student was not identified as an IDEA eligible student, his potential eligibility did not matter. c. Yes. District can never expel a student who is qualified.

45. MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT – YOU BE THE JUDGE (Cont.) d. No. Student was not evaluated by District and therefore not entitled to IDEA protections. e. Yes. District should have referred student for residential placement to address behavior issues. Hearing Panel Decision: _____ Colchester Sch. Dist. 41 IDELR 58 (SEA VT 2004).

46. MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT – YOU BE THE JUDGE (Cont.) • 16 yr. old ED/ODD issued 10 day OSS w/rec. for expulsion. • Student was expelled for 2 years, attending out-of-state residential school for students w/ED. • Student returned to District, but began to decompensate and engaged in misconduct, including threats, cheating, destruction of property. • District issued 10 day OSS and notified parent it was expelling student and terminating high school placement.

47. MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT – YOU BE THE JUDGE (Cont.) • District believed student was danger to self and others, and recommended home instruction pending out-of-district placement. • Parent requested due process and invoked stay-put.

48. MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT – YOU BE THE JUDGE (Cont.) • ISSUE: Does stay put require continuation of high school placement pending due process? a. Yes. Once parent requests DP District obligated to maintain current placement. b. No. Student’s behavior represented a danger to self and others and District could properly place in IAES for 45 days. c. Yes. District required to conduct evaluation and convene IEP team to determine appropriate placement before changing placement. d. Yes. District failed to demonstrate that maintaining current placement was substantially likely to result in injury to student or others.

49. MANIFESTATION DETERMINATIONS AND DISCIPLINARY CHANGES IN PLACEMENT – YOU BE THE JUDGE (Cont.) Hearing Panel Decision: ____ West Orange Bd. of Educ., 105 LRP 2858.

50. CHILD FIND & INDENTIFICATION – YOU BE THE JUDGE • 10th grade regular ed. Student admitted by parents to short-term drug rehab. facility. • Student’s drug habit includes intravenous drug use. • Student’s grades declined and attendance was poor. • Prior to 10th grade, student achieved above average grades and had no history of behavior or discipline issues.