Focus on Quality : What Does It Mean To Be Qualified

1. SES Fall 2010 Focus on Quality:What Does It Mean To Be Qualified and Does It Matter to FAPE?

2. Overview • What Are the Requirements To Be “Qualified” as Special Education Staff? • Does FAPE Hinge on Staff Qualifications?

3. District Staff Are Presumed To Be Qualified • Courts are not likely to second guess staff qualifications absent evidence to the contrary

4. District Staff Are Presumed To Be Qualified • What matters is whether the district’s proposed staff is trained to deliver a program “reasonably calculated to confer a meaningful benefit on the child”

5. Qualified Special Education Teachers equals Highly Qualified Under the NCLB =

6. Bachelor’s degree Special ed. credential/internship credential 9th Circuit invalidated internship credential 9/27/2010 No emergency/temporary/provisional credential waivers Demonstrated subject matter competence Highly Qualified Special Education Teachers Under the IDEA

7. Highly Qualified Special Education Teachers Under the IDEA • Subject matter competence required in all settings • No exception for the resource room or learning center

8. Highly Qualified Special Education Teachers Under the IDEA • New teachers, credentialed on or after July 1, 2002, demonstrate subject matter competence by: • Testing, or • Completion of degrees/coursework

9. Highly Qualified Special Education Teachers Under the IDEA • Veteran teachers demonstrate competence by: • High, Objective Uniform State Standard (HOUSS) Exception: Veteran middle school/high school teacher newly credentialed and hired as special ed. teacher

10. We don’t say old – we say Veteran!

11. Highly Qualified Special Education Teachers Under the IDEA • Flexibility on subject matter competence for special education teachers who: • Teach to alternate achievement standards, or • Teach multiple subjects

12. Highly Qualified Special Education Teachers Under the IDEA Teaching to Alternate Achievement Standards • Demonstrate subject matter competence by: • Meeting NCLB requirements, or • Demonstrating appropriate level of subject matter knowledge

13. Highly Qualified Special Education Teachers Under the IDEA Teaching Multiple Subjects • Demonstrate subject matter competence by: • Meeting NCLB requirements, or • New teachers qualifying in one subject matter, allowed two years for others

14. Autism Credentialing • What is the alternate route? • Mild to moderate special education teacher, and • Consent to the assignment, and • One year of full-time instruction to students with autism prior to September 1, 2007, and favorable evaluation/recommendation, or coursework (Ed. Code, § 44265.1.)

15. Autism Credentialing • Why? • More autistic students in California • Requirement of least restrictive environment • The need for more teachers to be able to instruct students with autism

16. Autism Credentialing • New Regulations • Effective date: June 26, 2010 • Autism Spectrum Disorders (ASD) content is now included in all revised preliminary Education Specialist Teaching Credential programs in all specialty areas • Authorizes instructional support to students with autism (5 C.C.R. § 80048.6(b)(8).)

17. Related ServicesPersonnel Qualification • Not held to NCLB’s “highly qualified” standard • But still must be qualified! • Can’t be waived on an emergency, temporary or provisional basis

18. Special Education Paraprofessionals in Title I Schools • For instructional support aides, not personal care • Standards • Completed at least two years of college • Obtained at least an associate’s degree, and • Meet a rigorous standard of quality through a formal state or local assessment

19. Qualifications for Extended School Year Staff • Must meet IDEA’s highly qualified teacher requirement • Just because it is summer does not mean districts can take a “vacation” from the qualification requirements (Letter to Copenhaver (OSEP 2007).)

20. Qualifications for Compensatory Education Staff • Must meet IDEA’s highly qualified teacher requirement • For purposes of staff qualifications, treat compensatory education just as you would a regular school program (Letter to Anonymous (OSEP 2007).)

21. Parent Inquiries Regarding Personnel Qualifications

22. Parent Inquiries Regarding Personnel Qualifications • Title I schools • Must inform parents of right to request qualifications of child’s core academic subject teachers and paraprofessionals • What information must districts share? • Type of state credential or license • Education level and subject area of college degree(s)

23. Parent Inquiries Regarding Personnel Qualifications • Title I schools • Must also provide parents notice if their child is or will be taught for more than four consecutive weeks by a teacher who is not highly qualified

24. Parent Inquiries Regarding Personnel Qualifications • How much should districts share when parents ask questions during the IEP process? • All schools affected not just Title I schools

25. Parent Inquiries Regarding Personnel Qualifications Competing Rights Parent’s right to participate in IEP decision-making Staff’s rightto privacy

26. Parent Inquiries Regarding Personnel Qualifications • Law on staff’s right to privacy is vague • No disclosure of records constituting “an unwarranted invasion of personal privacy” • Courts balance public interest and private interest

27. Parent Inquiries Regarding Personnel Qualifications Commission on Teacher Credentialing CTC website posts all teacher’s credentialsand subject matter authorizations with a public search feature by teacher’s last name

28. Parent Inquiries Regarding Personnel Qualifications • Has teacher met state requirements for job? • Is teacher under emergency or other temporary status? • Teacher’s degrees/certificates/licenses and the field of discipline of each It is reasonable to provide NCLB information at non-Title 1 schools -

29. Parent Inquiries Regarding Personnel Qualifications If parent wants more and staff member agrees to disclosure … How much is too much?

30. Parent Inquiries Regarding Personnel Qualifications When it refused to discuss the “competency” of instructional aides, district denied parent rights (Paradise (CA) USD (OCR 2006).)

31. Parent Inquiries Regarding Personnel Qualifications • OAH found 30 minute discussion of service provider’s qualifications adequate (Student v. Exeter Union SD;Exeter Union SD v. Student (OAH 2009).)

32. Parent Inquiries Regarding Personnel Qualifications So how much is enough? • No bright-line rule • BUT, attitude can make all the difference: • In Paradise, the district was clearly hostile to any discussion • In Exeter, IEP team demonstrated willingness to engage in open dialogue

33. Practice Pointer • Do not dismiss parent concerns; allow parents meaningful opportunity for dialogue • Share public information: credentials, other relevant professional qualifications • Emphasize that the district would not have hired the employee if he/she were not qualified

34. Specifying StaffQualifications on IEPs • IEPs normally contain no information regarding staff qualifications • Only indicate staff qualifications if truly necessary for FAPE (Letter to Dickman (OSEP 2002).)

35. Does FAPE hinge on staff qualifications?

36. The Bottom Line • The bottom line in a due process claim is not whether staff is qualified, but whether staff appropriately implemented the IEP

37. Compliance Complaint orDue Process Claim • Staff appropriately implements IEP but not technically qualified→ Compliance Complaint • Staff technically qualified but fail to appropriately implement IEP→ Due Process Claim

38. The Lack of a “Highly Qualified” Teacher No right to file for due process “[N]othing in [the IDEA] shall be construed to create a right of action on behalf of an individual student or class of students for the failure of a particular State educational agency or local educational agency employee to be highly qualified” (20 U.S.C. § 1401(10(E); 34 C.F.R. §§ 300.18(f) and 300.156(e).)

39. Case Example ISSUE • Did the District deny FAPE by failing to provide appropriately credentialed personnel? (Student v. Lake Elsinore USD (OAH 2006).)

40. Case Example FACTS • Student claimed she was denied FAPE because teacher and speech/language therapist were not properly credentialed • No evidence regarding the required credentials or whether they met those requirements (Student v. Lake Elsinore USD (OAH 2006).)

41. Case Example RULING • Whether a teacher holds the proper credential is not within the jurisdiction of a due process hearing • However, teacher and speech/language therapist possessed sufficient qualifications, and their qualifications did not deny Student FAPE (Student v. Lake Elsinore USD (OAH 2006).)

42. Case Example ISSUE • Does a district’s failure to provide a highly qualified teacher provide a basis for a due process complaint? (Prince George’s County Public Schools (MD.SEA 2009).)

43. Case Example FACTS • Student’s IEP required special education instruction from a special education teacher • Student’s teacher was absent for a month • Substitute staff not highly qualified (Prince George’s County Public Schools (MD.SEA 2009).)

44. Case Example RULING • District failed to assign a highly qualified teacher • However, the IDEA does not create an individual cause of action for FAPE violations due to the lack of a highly qualified teacher • No corrective action ordered (Prince George’s County Public Schools (MD.SEA 2009).)

45. The Lack of a “Highly Qualified” Teacher Attorney Fees • Teacher certification may be important for purposes of attorney fees, irrespective of whether the student was denied FAPE

46. Case Example ISSUE • Does District’s failure to classify a student as autistic result in Parent obtaining prevailing party status, even though ALJ found that Student was provided FAPE? (Weissburg v. Lancaster SD (9th Cir. 2010).)

47. Case Example FACTS • Student qualified for special education as mentally retarded (“MR”) • Parents disputed his eligibility category because private psychologist determined he was autistic • Student’s teacher was qualified to teach both students with MR and autism (Weissburg v. Lancaster SD (9th Cir. 2010).)

48. Case Example RULING • Administrative hearing • Student should have been classified as both MR and autistic, but he was not denied FAPE • District Court • Student was not a prevailing party because change in disability classification alone did not materially alter the parties’ legal relationship (Weissburg v. Lancaster SD (9th Cir. 2010).)

49. Case Example RULING • Ninth Circuit • Reversed • Student’s change in classification gave him legal right to a teacher with an autism certification • This changed the parties’ legal relationship for purposes of prevailing party status and attorney fees (Weissburg v. Lancaster SD (9th Cir. 2010).)

50. The Lack of a Qualified or Properly Trained Teacher • Issue of staff qualifications may be raised in FAPE claim in a limited context • Teacher’s inability or failure to implement a student’s IEP due to lack of training/education