Special Education Fall Institute 2012

1. Special Education Fall Institute 2012 Using School Teams to Meet Every Student’s Needs & Stay Compliant with Child Find, Evaluation & Special Education Procedures …What Every Educator Needs to Know From Rules and Case Law

2. OSEP Guidance IDEA What the Rules Tell Us Section 504 State Law

3. Federal ADA Rules Section 504 prohibits against discrimination… an LEA may not discriminate on the basis of disability: • May not deny opportunity to participate in or benefit from programs, services, or other benefits (FAPE) to which non-disabled individuals have access. • May not deny access to programs, services, benefits or opportunities to participate as a result of physical barriers.

4. The IDEA and Utah Special Education Rules Child Find Rule in the IDEA Ensure that all students with disabilities between the ages of 3 and 22, and those attending private schools, are identified, located, and evaluated, including: Students who are highly mobile. Students who have been suspended or expelled from school, home schooled students. Students who have not graduated from high school with a regular high school diploma. • And, students who may be suspected as a student with a disability even though they are advancing from grade to grade. Falling through the Cracks?

5. IDEA and 504 Rules about Teams The IDEA and Section 504 rely heavily on the use of school-based teams to make decisions • Multi-disciplinary eligibility teams • IEP and 504 Planning Teams

6. OSEP Guidance: “Early Intervening” Teams “A multi-tiered instructional framework, often referred to as RTI, is a school-wide approach that addresses the needs of all students, including struggling learners and students with disabilities, and integrates assessment and intervention within a multi-level instructional and behavioral system to maximize student achievement and reduce problem behaviors. In a multi-tiered framework…school teams are used to identify students at-risk for poor learning outcomes early, monitor student progress, provide evidence-based interventions, and adjust the intensity and nature of those interventions depending on a student's responsiveness.” Memorandum to State Directors of Special Education, 56 IDELR 50 (OSEP 2011). (emphasis added)

7. Granite School District’s Multi-Tiered Systems of Support Granite School District’s MTSS incorporates RtI and PBS, and focuses on the needs of struggling, advanced and English language learners to make data-based decisions for successful student outcomes.

8. Content and Language Objectives • Learners will hear about current Case Law involving students with disabilities and the rules, procedures and best practices relevant to the case law • Learners will predict outcomes of the case studies based on information presented and discuss best practice processes and procedures to support every student and avoid legal pitfalls

9. Hot Areas in Current Case Law • Tension between Child Find and RtI • Predetermination of Program & Placement • Students with Disabilities and Bullying

10. Tension between Child Find and RtI • "We are still learning about how to integrate RTI practices within the legal framework of [the] IDEA," said Martín, a school attorney at Richards Lindsay & Martín LLP. "It's creating a particular tension that we need to deal with in order to help minimize the potential for disputes and, if disputes arise, help minimize the potential for liability.” • The following are key to avoiding Child Find claims: 1) documentation of student intervention team decisions, 2) documentation of parent knowledge and input about interventions and 3) documentation of progress on interventions.

11. Johnson v. Upland Unified School District 36 IDELR 2, 29 Fed. Appx. 689 (9th Cir. 2002) • School intervention team met and determined to implement interventions in the general education program to address student’s mental health needs • School documented ongoing progress of the student as a result of the interventions • Parents sought outside counseling and services • In a later year, school evaluated student for special education and found him eligible • Parent filed in district and higher courts for compensation for outside services from the time the student began counseling to the date of qualification for special education services

12. Text to: 22333Message: Choices Below Or go online: http://www.polleverywhere.com/SpecialED 74372 The Court determined that the District committed a Child Find violation and ordered the District to compensate the parent for counseling services and lawyer fees. 74671 The Court determined that the District complied with the IDEA when it attempted general education interventions with documented progress prior to considering a student for special education evaluation

13. Johnson v. Upland Unified School District 36 IDELR 2, 29 Fed. Appx. 689 (9th Cir. 2002) Correct Answer: B. The Court determined that the district complied with the IDEA when its intervention team documented general education interventions before considering a student for special education. Furthermore, state policy expected that general education interventions would be considered before referring a student for a special education evaluation. Therefore, the school did not deny FAPE to the student.

14. Tension between Child Find and RtI • If a parent requests for special education evaluation when the school intervention team has determined to implement interventions for a student in the Gen Ed setting remember three things to avoid Child Find claims: • Must either Propose or Refuse to Evaluate the student and provide the parent Written Prior Notice of the decision (See revised “Refusal to Evaluate” Template online. • SSTs, MTSS Teams or RtI Teams must implement interventions with fidelity, make the parent aware of the interventions and document progress on interventions. • “Promptly evaluate the student for Special Education if the student does not show progress on interventions after a reasonable period of time.

15. Joshua Independent School District, 56 IDELR 88 (SEA TX 2010) • The parents of a student who has difficulty reading provide consent to let his school district offer interventions within an multi-tiered RtI system. • Parents then come back 8 months later and request evaluation. • The district declines and provide Written Prior Notice of Refusal to Evaluate based on the student progress data that the team has documented. • The team later agrees to evaluate the student anyway but finds him ineligible. • The parent files a complaint.

16. Text to: 22333Message: Choices Below Or go online: http://www.polleverywhere.com/SpecialED 74347 The District prevailed because the school’s intervention team had data that showed the student had made significant progress in reading during the RTI process; No reason to suspect the student as a student with a disability. 74352 The District was found in violation of Child Find because it originally declined to evaluate the student, and then evaluated him 10 months later anyway. 74367 The District was found in violation of Child Find because it evaluated the student and found him ineligible.

17. Joshua Independent School District, 56 IDELR 88 (SEA TX 2010) Correct Answer: A. The district prevailed because the student showed progress in reading with Gen Ed interventions and the team followed all procedures such as documenting parent agreement to interventions, progress and refusal to evaluate.

18. Tension between Child Find and RtI Child Find Rule in the IDEA • “Ensures” that all students with disabilities between the ages of 3 and 22 are located, identified and evaluated • “Promptly” evaluate a student for Special Education when the • student does not show progress on interventions in general • education after a reasonable period of time

19. Compton Unified School District v. Addison, 54 IDELR 71, 598 F.3d 1181 (9th Cir. 2010) • A 10th-grade student was referred by the school principal to an outside mental health counselor since the student failed every subject and the teachers reported that her work was “gibberish and incomprehensible,” she played with dolls in class, and she urinated on herself in class. • The mother did not request evaluation for special education. • Regardless of the mental health counselor’s recommendation for a special education evaluation, the school district did not refer her for an evaluation. • The student was promoted to the 11th grade.

20. Text to: 22333Message: Choices Below Or go online: http://www.polleverywhere.com/SpecialED 74728 The Court determined that the District did not violate its responsibility because it referred the girl to a mental health counselor. She could not function in a public school environment anyway. 74747 The Court determined that the District did not violate its responsibility because the parent did not want the student to be evaluated. 74897 The Court found that the District violated its responsibility under the Child Find provision of the IDEA when it did not conduct a special education evaluation of the student.

21. Compton Unified School District v. Addison, 54 IDELR 71, 598 F.3d 1181 (9th Cir. 2010) Correct Answer: C. The Court found that the District violated its responsibility under the Child Find provision of the IDEA when it did not conduct a special education evaluation of the student.

22. Predetermination of Services and Placement Deal v. Hamilton County Bd. of Educ., 42 IDELR 109 (6th Cir) Predetermination occurs when the school team, through policies, procedures or practices, prevents a parent from “meaningful participation” in the IEP team process. “A school district violates IDEA procedures if it independently develops an IEP, without meaningful parental participation, and then simply presents the IEP to the parent for ratification.”

23. H. Berry v. Las Virgenes Unified School District, 54 IDELR 73 (9th Cir. 2010)(unpublished). • The District determined, prior to the IEP meeting, that the student would be moved from his private school (paid by the public school) to a public school classroom for children with autism. • At the IEP meeting, the District had paperwork that demonstrated that the student would be placed in a public school program, and the LEA representative stated that the meeting participants would discuss a transition plan during this meeting. • The team did not discuss alternatives to the district’s proposed placements. • The District believed that its proposed placement was appropriate and had evidence to show it. • The parent attended the IEP meeting and did not participate to a great extent.

24. Text to: 22333Message: Choices Below Or go online: http://www.polleverywhere.com/SpecialED 53604 The Court found by a preponderance of the evidence that H.B.'s placement was predetermined and, accordingly, the procedural requirements of the IDEA were violated. 53606 The Court found that the student's mother attended the IEP and did participate in some parts of the discussion therefore she had the opportunity to participate meaningfully.

25. H. Berry v. Las Virgenes Unified School District, 54 IDELR 73 (9th Cir. 2010)(unpublished). Correct Answer: A • The Court concluded that, before the IEP meeting began, the District was not willing to consider alternative placements for the student. • The Court found credible [the mother’s] explanation that her minimal participation was based on her sense of futility. She reasonably believed that the transition of her son from Elliott to Lupin Elementary was a foregone conclusion.

26. Students with Disabilities and Bullying Landmark Case: Davis v. Monroe County Bd. of Educ. (U.S. 1999) • Schools may be liable for money damages if: • Bullying/Harassment is based on student’s disability; • Bullying/Harassment is severe or pervasive enough to interfere • with the student’s education and creates a hostile environment; • School officials knew about the bullying/harassment; • School officials were “deliberately indifferent.” • Dear Colleague Letter, 55 IDELR 174 (OCR 2010). • A “hostile environment” is created when conduct is • “sufficiently severe, pervasive, or persistent so as to • interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities • offered by a school.”

27. T.K. v. New York City Dep’t Of Educ., 56 IDELR 228, (E.D.N.Y. 2011) • 12‐year‐old girl with LD. • Ostracized by her peers at school. • Subjected to physical bullying at school. • Girl’s grades declined, but still were passing. • Was she denied FAPE as a result of bullying?

28. Text to 22333: Message: Choices BelowOr Or go online: http://www.polleverywhere.com/SpecialED 53604 Court held that bullying becomes actionable under the IDEA when a student’s educational benefit is “adversely affected.” 53606 Court determined that there was no denial of FAPE since her grades were all still passing.

29. T.K. v. New York City Dep’t Of Educ., 56 IDELR 228, (E.D.N.Y. 2011) • Correct Answer: A • Parents DO NOT have to prove that their child is denied ALL educational benefit, or that they have regressed due to bullying; just that it has been impacted.

30. R.R. v. Kingsport City Sch. Dist., 45 IDELR 212 (SEA TN 2005) • 9th‐grade boy with an LD in written expression and • ADHD was involved in 5 altercations (verbal and • physical) with peers over a 7‐month period. • Parents complained to administrators about bullying. • LEA intervention team developed and implemented • a BIP (counseling; self‐reporting of bullying; social • skills training). • LEA placed an adult escort with the boy throughout • the school day. • Boy was beaten up again – parents withdrew him and • sued for denial of FAPE.

31. Text to: 22333Message: Choices Below Or go online: http://www.polleverywhere.com/SpecialED 09883 Student was denied FAPE because the school failed to prevent attacks after the parents’ report of bullying. 09884 Administrators took every action necessary in response to allegations of bullying. No denial of FAPE. 09886 Getting into a fight with peers does not constitute bullying per se and in some cases it was probably instigated by him.

32. R.R. v. Kingsport City Sch. Dist., 45 IDELR 212 (SEA TN 2005) Correct Answer: B • The teams thorough response through planning and documentation of several interventions to stop the bullying/fighting demonstrated good faith efforts. • Schools are not charged with ensuring that nothing bad ever happens to students. They are charged with being aware, proactive and responsive when they have reasons to believe those things are happening.

33. Take Away and References • When you are back in your schools, think about the topics we discussed today. • What steps will you take to help your school teams improve the implementation of practices and procedures to ensure individualized support for every student? Presentations at LRP Conference by: Jose L. Martín, Attorney at Law, 2010 Art Cernosia, Esq. – LLC, 2012 Walsh, P.C. 2012 Melinda Jacobs, Esq, 2012