Resolving and Possibly Preventing Special Education Disputes

1. Resolving and Possibly Preventing Special Education Disputes Jamila C. Pollard, Esq. Program Manager Senior/Legal Officer Family Engagement and Dispute Resolution Division for Special Education Services and Supports GCASE Legal Conference 2019

2. Learning Targets • I can discuss some techniques and strategies to possibly prevent special education disputes. • I can compare and contrast some family engagement resources, dispute prevention processes and dispute resolution processes. • I can discuss some IDEA issues that are frequently raised in formal complaints and due process hearings. • I know where to locate some resources to assist in analyzing certain special education issues.

3. It’s all about the kids…

4. A Parent’s Experience with the Special Education System

5. What Can Educators Do? • Communicate, communicate, communicate • Build trust • Listen • Eliminate jargon • Structure IEP Team meetings • Understand perspectives • Reduce power imbalance • Support family engagement A major system of the complex school organization that develops quality links between local school professionals and the parents and community the school is intended to serve

6. Invest early in building trusting, working relationships with parents.

7. Family Engagement and Dispute Resolution Unit Providing a continuum of resources for Georgia families and school districts

8. Family Engagement

9. Georgia Parent Mentor Partnership • Parent mentors are parents of children with disabilities who work with families of students with disabilities on a daily basis providing them with tools, resources, and strategies that they can use to support their children at home, at school, and in the community. • http://www.parentmentors.org/

10. State Advisory Panel (SAP) • The SAP is comprised of parents, persons with disabilities, educators, and administrators as well as representatives from public and private agencies. • The SAP advises the GaDOE on the provision of special education and related services for students with disabilities. • Advises on the unmet needs related to education of special education students within the State • Provides feedback on any rules or regulations proposed by the State regarding special education • Advises the Division on the improvement activities that need to be developed and implemented in order to improve outcomes for students with disabilities

11. Parent 2 Parent of GA • Georgia’s Parent Training and Information Center (PTI) • “Helping families work with early intervention and education systems so you can be EQUAL partners in decision making” • Offers support services, information support, educational opportunities, and leadership involvement • “Helping parents become their child’s best advocate” • http://p2pga.org/ or 1-800-229-2038

12. Working Together Online Learning Series (cadreworks.org) The Working Together Series includes five interactive self-directed courses.  This foundational series for family members and educators includes the following courses: Course 1: Introduction to the Working Together Series Course 2: IEP Meetings and Beyond Course 3: Listening and Responding Skills Course 4: Managing and Responding to Emotions Course 5: Focusing on Interests to Reach Agreement To access the series, visit: https://cadre-workingtogether.inquisiqr4.com/(link is external). These courses provide families and educators with a number of strategies for working together and through conflict.  Anyone supporting children or youth with disabilities may benefit from this series, however, the setting in which collaborative problem-solving and conflict resolution takes place within this series is typically the school or IEP meeting. A facilitator guide and other materials will go along with each course to offer additional learning opportunities.  Courses and materials will be posted as they are developed.

13. A Continuum

14. A Continuum of Dispute Prevention and Resolution Processes

16. GaDOE Special Education Help Desk for parents and districts • Answers questions related to the special education and related services of a child; • Explains the procedural safeguards (parents' rights) available to parents of students with disabilities; • Provides information about, access to, and assistance with the dispute resolution processes; • Discusses options for addressing concerns or disagreements about a student’s special education program; and • Provides callers with other useful resources and informational materials (404) 657-9968; SPEDhelpdesk@doe.k12.ga.us

17. IEP Facilitation • IEP Facilitation is a “collaborative dispute prevention and resolution process used when members of an IEP Team agree that the presence of a third party would help facilitate communication and problem solving.” • IEP Facilitation can help IEP Teams overcome any pressure or anxiety associated with complex or controversial meetings and assist IEP Teams who have had a history of difficult interactions.

18. IEP Facilitation • An impartial IEP facilitator will: • Guide the discussions by asking student-focused questions • Assist IEP Team members in the thoughtful, productive construction of a quality IEP • Help create an agenda, group norms, and expected outcomes for the meeting • Encourage full participation of all members of the IEP Team

19. FIEP Team Meeting Program • Muscogee County • Oconee County • Pierce County • Richmond County • Rome City • Scintilla Charter Academy • State Schools • Turner County • Union County • White County • Atlanta Public Schools • Bartow County • Bryan County • Butts County • Cartersville City • Catoosa County • Charlton County • City Schools of Decatur • Gainesville City • Georgia Cyber Academy • Gordon County • Greene County • Ivy Prep at Kirkwood • Jackson County • Lamar County • Lowndes County • Miller County • Clarke County • Clayton County • Cobb County • Columbia County • Cook County • Coweta Charter Academy • DeKalb County • Evans County • Fulton County • As of May 2018, we have 36 participating districts:

20. Dade Towns Catoosa Fannin Rabun Union Walker Whitfield Gilmer Murray White Habersham Lumpkin Stephens Chattooga Gordon Pickens Franklin Dawson Hart Banks Bartow Cherokee Forsyth Hall Floyd Madison Elbert Jackson Polk Cobb Clarke Barrow Gwinnett Oglethorpe Paulding Haralson O Walton c o n e e Wilkes DeKalb Lincoln Fulton Douglas e l a d Morgan k c o R Greene Newton Taliaferro Columbia M C c D u l Carroll a f f Henry i Warren e y Fayette t o n Coweta Richmond Jasper Putnam Heard Hancock k c Butts o Spalding c s a l G Pike Lamar Baldwin Troup Jefferson Meriwether Burke Monroe Jones Washington Upson Bibb Wilkinson Jenkins Harris Screven Talbot Crawford Twiggs Johnson Emanuel Taylor Peach Muscogee Houston Bleckley Treutlen Candler Laurens Bulloch Macon Marion Effingham Chattahoochee Pulaski Schley Dodge M Evans Dooly Toombs o Wheeler n Stewart Webster t g o Sumter m Wilcox Bryan Tattnall Chatham e r y Telfair Crisp s i Quitman v Liberty a Terrell D Long f Lee f e Ben Hill J Appling Randolph Turner Clay Bacon Coffee Irwin Wayne Calhoun Dougherty Worth McIntosh Tift Pierce Early Atkinson Baker Mitchell Berrien Glynn Colquitt Miller Brantley Cook Ware Lanier Camden S Decatur Clinch Grady Thomas e Lowndes m Charlton Brooks i o n e l Echols 36 Participating FIEP Districts Charter Schools Ivy Prep Academy at Kirkwood (DeKalb); Scintilla; Coweta Academy; GA Cyber Academy State Schools AASD, GSD, GAB *Dalton City *Chickamauga City *Calhoun *Trion City City *Gainesville City * Rome City *Cartersville *Commerce City City *Buford City *Jefferson City *Marietta City *Social Circle *Breman *Decatur City City City *Carrollton *Atlanta City City *Dublin City *Vidalia City * Pelham City *Thomasville *Valdosta City City

21. FIEP Team Meeting Program

22. Starting in the 2019-2020 school year….. • FIEPs will be available statewide • Request for applications for new facilitators will open soon • Procedures Manual, Flyers, Parent Guide, FIEP Request form, and upcoming FIEP video will be on the GaDOE website

23. Dispute Resolution Processes

24. Legally-Mandated Dispute Resolution Processes under the IDEA • Mediation (34 C.F.R. § 300.506) • Formal Written Complaints (34 C.F.R. §§ 300.151-300.153) • Due Process Hearing Requests (34 C.F.R. §§ 300.507-300.518) • Resolution Sessions (34 C.F.R. § 300.510) Code of Federal Regulations http://www.ecfr.gov/ Title 34 Subtitle B Part 300

25. Mediation A voluntary process that brings parents and school districts together to resolve their disagreements regarding any matter under IDEA and the state special education rules, through the use of a skilled, impartial mediator and resulting in a legally binding, written mediation agreement.

26. Mediation - FY 2014 – 2019 YTDMediation requests increased from 69 in FY 2014 to 74in FY 2015 to 94 in FY 2016 to 115 in FY 2017, to 140 in FY 2018. In FY 2019 YTD, there were 88 mediation requests.

27. Due Process Hearing Requests A written document used for parents or districts to request a formal hearing before an administrative law judge (ALJ) regarding any matter related to the identification, evaluation, or educational placement , or provision of a free appropriate public education (FAPE) to the child, and results in the issuance of a written decision after consideration of pleadings and evidence in a formal, judicial hearing.

28. Resolution Sessions A meeting held between the parent and school district, within 15 days* after notice of a due process hearing request, to help resolve the issues listed in the due process hearing request. The meeting is mandatory unless the parent and school district agree to not have the meeting or to use mediation instead. The meeting results in a signed, legally enforceable written agreement.

29. Due Process Hearings FY 2014-2018 YTD Due Process Hearing Requests decreased slightly from 108 in FY 2014 to 101 in FY 2015 and increased to 141in FY 2016. In FY 2017, the requested decreased to 137 requests and in again in FY 2018 YTD to 116 requests. There have been 68 due process hearing requests in FY2019 YTD.

30. Formal Complaints • A written complaint from any person or organization to the GaDOE alleging violations of IDEA and state special education rules that need to be investigated, and resulting in a written decision containing findings of facts, conclusions, and remedies, if applicable.

31. Formal Complaints- FY 2014 – 2018Formal Complaints increased from 101 in FY 2014 to 120 in FY 2015 to 128in FY 2016 to 127 in FY 2017 and 170 in FY 2018. For FY 2019 YTD, 140 formal complaints have been filed.

32. Due Process Hearings

33. FY 19 Due Process Cases • 19-12936 • Parent filed for an expedited due process hearing to contest the manifestation determination. • Middle school student with autism got in a fight with another student and unintentionally hit a teacher. • District said the unintentional hitting of the teacher was not a manifestation and not result of failure to implement the IEP.

34. FY 19 Due Process Cases • 19-12936 continued • Student had a BIP that addressed verbal and physical aggression and contained a 3-step process. • ALJ determined that unintentionally hitting the teacher was a direct result of the district failing to “fully and properly implement” the student’s BIP. • After the student was able to regulate his behavior by putting down the chair, he continued to use profanity and the BIP should have been implemented before the other student had opportunity to re-engage the student.

35. FY 19 Due Process Case • 19-04500 • ALJ granted district’s motion for involuntary dismissal after parent presented evidence in a hearing. • ALJ denied parent’s request for compensatory services for refusing to provide services based on MID and having student in GNETS placement under Autism; refusing to order transportation to school of parent’s choice; and refusing to order special education director and school psychologist to attend humanity/ethics training and TA in eligibility rules.

36. FY 19 Due Process Case • 19-04500 continued • Parent’s evidence included: • Change in student’s eligibility from Autism and Speech-language Impairment in elementary school to Speech only in second year of middle school • Testimony from advocate working with student (below grade level, avoidance behavior, shutting down, crying) • Three evaluations including an IEE with IQ scores of less than 70 and one evaluation that student may have difficulty in all domains of adaptive functioning • Student had behavior problems after moving from small classroom to large classroom setting

37. FY 19 Due Process Case • 19-04500 continued • ALJ said that not finding the student eligible under MID does not show that the IEP was not reasonably calculated to deliver educational benefits because “the category under which the student is found eligible for special education does not determine the special education services to which the student is entitled.” • Parent withdrew student in second year of middle school and enrolled in private school with SB10 scholarship

38. Formal Complaints

39. FY 2017 Findings of Non-Compliance in Formal Complaints (76 Findings against 29 districts) • Implementation of the IEP (17) • Development, review, and revision of the IEP (12) • Evaluations and Reevaluations (10) • Free, Appropriate Public Education (6) • Parent Participation (5) • Least Restrictive Environment Requirements (4) • Child Find (4) • Discipline Procedures (4) • Independent Educational Evaluation (2) • When IEPs must be in effect (2) • IEP Team (2) • Parental Consent (2) • Extended School Year Services (1) • Procedural Safeguards Notice (1) • AT devices and services (1) • Resolution Process (1) • Confidentiality (1) • Personnel Qualifications (1)

40. FY 2018 Findings of Non-Compliance in Formal Complaints(77 Findings against 17 districts) • Implementation of IEP (16) • Development, review, and revision of the IEP (14) • Free, Appropriate Public Education (10) • Parent Participation (6) • Personnel Qualifications (5) • IEP Team (5) • Evaluations and Reevaluations (5) • When IEPS must be in effect (4) • Discipline Procedures (3) • Confidentiality (2) • Child Find (2) • Opportunity to examine records (1) • Resolution Process (1) • Independent Educational Evaluation (IEE) (1) • Nonacademic settings (1) • State monitoring and enforcement (1)

41. FY19YTD Findings of Non-Compliance in Formal Complaints (56 Findings against 21 districts) • Implementation of IEP (11) • Development, review, and revision of IEP (10) • Evaluations and Reevaluations (7) • Free, Appropriate Public Education (7) • Least Restrictive Environment (5) • Discipline Procedures (4) • IEP Team (2) • Related Services (2) • Parent Participation (1) • Prior Written Notice (1) • When IEPs must be in effect (1) • Personnel Qualifications (1) • Child Find (1) • Independent Educational Evaluation (1) • Mediation agreement (1) • Complaint Process (1)

42. Implementation of IEP (34 C.F.R. § 300.320) • This regulation defines an IEP and details the required components of an IEP. • “Each public agency must ensure that, as soon as possible following development of the IEP, special education and related services are made available to the child in accordance with the child’s IEP.” 34 C.F.R. § 300.323(c)(2) • Overarching issue: Students not receiving the special education and related services required in the IEP

43. Implementation of IEP (34 C.F.R. § 300.320) • Incorrect service model • Student’s IEP included one hour daily of ELA, Math, Science, and Social Studies in co-taught class; For 18-19 school year, school separated ELA and Reading course and placed student in regular education Reading class • 8th grade students received collaborative instead of co-taught services in Math and Reading, and collaborative or supportive services in ELA instead of co-taught • 9th grade students did not receive special education services in Reading

44. Implementation of IEP (34 C.F.R. § 300.320) • Incorrect service model continued • IEP requires 10 hours per week in general education classroom for Connections and Science/Social Studies; but student only allowed to attend general education classes “when behaviors permit”

45. Implementation of IEP (34 C.F.R. § 300.320) • Lack of documentation that student received special education and related services required in IEP • Expelled student did not receive over 40 hours of general education instruction and 30 hours of special education services through home-based instruction • Special transportation not provided on first 2 days of school • No documentation that student received his special education services during 11 days of ISS

46. 71 Federal Register 46715 (August 14, 2006) • “It has been the [USED’s] long term policy that an in-school suspension would not be considered a part of the days of suspension addressed in § 300.530 as long as the child is afforded the opportunity to continue to appropriately participate in the general curriculum, continue to receive the services specified on the child’s IEP, and continue to participate with nondisabled children to the extent they would have in their current placement. This continues to be our policy”

47. Implementation of IEP (34 C.F.R. § 300.320) • Lack of documentation that student received supplementary aids and services included in IEP • No documentation that morning check-in, check-out system was being provided • No documentation that staff was trained on medical equipment as stated in IEP for supports for personnel

48. Implementation of IEP (34 C.F.R. § 300.320) • Absence of certified personnel (e.g., teacher vacancies and teacher absences) • Student on GAA receiving instruction from teacher who does not have special education adapted curriculum certification. • For first 3-4 months of school, student’s special education co-teacher did not have special education certification

49. Current Resources Professional Qualifications Special Education Guide Professional Qualifications Decision Guide Professional Qualifications Quick Guide http://www.gadoe.org/School-Improvement/Teacher-and-Leader-Effectiveness/Pages/Professional-Qualifications-(PQ).aspx

50. Implementation of IEP (34 C.F.R. § 300.320) • Lack of fidelity and/or consistency in provision of IEP/BIP/student supports • No evidence of BIP data collection for 5 months when student’s placement was changed; When data collection started, it was inconsistent; Progress report notes were generalized in nature and provided no specific information • When student transitioned to middle school, teachers not trained on his amended BIP until after behavior incidents