Proactive Leadership for Special Education Administrators Karen Glasser Sharp , Esq.

1. Proactive Leadership for Special Education Administrators • Karen Glasser Sharp, Esq. • Emma Jay, Esq. • October 3, 2019

2. Recurrent Issues in Complaint Investigations and Due Process Hearings

3. FY 2019 – Complaints & Due Process Requests • Complaints filed – 147 • Mediations requested – 66 • Hearings requested – 84 • 1 decision rendered • 8 pending

4. Recurrent Issues in Complaint Investigations • IEP implementation & termination due to revocation of consent • 70 complaints filed regarding this issue • 24 violations found • IEP development, components & parent copy • 31 complaints filed regarding this issue • 7 violations found • Manifestation Determinations • 16 complaints filed regarding this issue • 3 violations found • Least Restrictive Environment • 16 complaints filed regarding this issue • 3 violations found

5. Recurrent Issues in Due Process Hearings • Service or Placement cited in 57 out of 84 (68%) • Provision of a FAPE cited in 52 out of 84 (62%) • Educational Evaluation cited in 37 out of 84 (44%) • Identification/Eligibility cited in 32 out of 84 (38%) • Access to Academic Programs cited in 25 out of 84 (30%) • Parent Participation cited in 24 out of 84 (29%) • Reimbursement for Services cited in 10 out of 84 (12%) • Manifestation Determinations cited in 10 out of 84 (12%) • Disciplinary Change cited in 9 out of 84 (11%)

6. Recurrent Issues Example: CP-003-2020 • Issues: • Did the School obtain written consent of the parent prior to disclosing personally identifiable information (PII) of the Student? • Did the School implement the Student’s IEP as written? Specifically: • Did the staff use a journal as an alternative means of communicating with the Student? • Was the Student allowed to have access to the resource room upon request?

7. Recurrent Issues Example: CP-003-2020 • Facts re Implementation: • The Student’s 2018 IEP required use of a journal as an alternative means of communication for the Student to communication with teachers and staff • The resource room teacher, an outside provider, the Parent, and the Student wrote in the journal. • The Student’s 2019 IEP included the same requirement regarding use of the journal. An accommodation was added allowing the Student cue cards to request access to certain locations • The Parent and School exchanged emails regarding access to the resource room during an upcoming field day. It was decided that the teacher would create an index card to note that the student wanted to go to the resource room. The Student used the index card to go to the resource room briefly during field day

8. Recurrent Issues Example: CP-003-2020 • Facts re PII: • The Parent received text messages and a phone call regarding the Student’s IEP from other parents. The Parent did not give consent to disclose to either • One individual received a copy of the Student’s IEP stapled to her child’s IEP. • School responded to inadvertent disclosure of PII by developing materials and conducting professional development training for all staff. The School principal also attended a two-day seminar on IEPs and 504 Plans

9. Recurrent Issues Example: CP-003-2020 • Conclusions • Violation for PII disclosure found • No additional corrective action required; however, the School’s self-correction now overseen by the Complaint Investigator and attendance/materials must be turned in • No implementation violation found • The journal was used, so it met the requirements of the IEP. The notes discussed who should use the journal, but additional requirements were not added • Use of the resource room was admitted, BUT during the course of this investigation the Complaint Investigator wanted proof of the index card used

10. Proactive Leadership for Special Education Administrators

11. Proactive Leadership for Special Education Administrators - Overview • Ensuring Effective Lines of Communication • Using Appropriate Staff • Training of Staff • Child Find Procedures • Compliance with Procedural Requirements • Defensible Evaluations/FBAs • Defensible IEPs/BIPs • Progress Monitoring

12. Proactive Leadership for Special Education Administrators – Effective Lines of Communication • Website Review • Cooperative • Local School Corporations • Student Handbooks • Parent Notifications • Staff Knowledge

13. Proactive Leadership for Special Education Administrators – Using Appropriate Staff • Teacher of Record • Licensure • Training • Experience • Teachers of Service • Paraprofessionals • Behavior Consultants • School Psychologists • Therapists – Speech, OT, Pt

14. Proactive Leadership for Special Education Administrators – Using Appropriate Staff All personnel employed or contracted by a school to provide special education or related services must be appropriately licensed or certified and must have the content knowledge and skills to provide services for which the individual is contracted.

15. Proactive Leadership for Special Education Administrators – Training of Staff • Basics – Local Procedures • General Training • Special Education Administrators • General Education Administrators • Special Education Teachers • Paraprofessionals  See next slide • Common Areas of Disability – ASD, SLD, ED • Common Areas of Need – Behavior, Social Skills, Accommodations • Student-Specific Training

16. Proactive Leadership for Special Education Administrators – Training of Staff • Schools must provide pre-service and in-service training to paraprofessionals in the following areas: • The role of the paraprofessional related to the role of the professional person providing supervision and direction. • The specific skills and content knowledge necessary to carry out the assigned responsibilities • Information on the following: • The specific skills needs and characteristics of the students with whom the paraprofessional will be working • Special education procedures, including confidentiality of personally identifiable information. • School must document, in writing, the training provided to paraprofessionals

17. Proactive Leadership for Special Education Administrators – Child Find Procedures • Written Child Find Procedures • Availability to Parents • Training Staff on Child Find Procedures • Red Flags • What they need to watch out for • Whom they should contact with concerns • Ensuring Responses to Parent Requests for Evaluations

18. Proactive Leadership for Special Education Administrators – Procedural Compliance • One of the most common issues in due process hearings – failing to comply with IDEA/Article 7 procedures • Examples: • Not responding timely to requests for evaluations • Not responding timely or appropriately to requests for IEEs • Not timely completing evaluation • Not providing copy of initial evaluation timely

19. Proactive Leadership for Special Education Administrators – Procedural Compliance • Examples: • Not providing meeting with school psychologist to review evaluation when requested • Not convening a case conference when requested by parent • Not communicating with parent to schedule CCC meeting at mutually agreeable date and time • Not providing adequate Notice of Case Conference • Not holding the ACR timely

20. Proactive Leadership for Special Education Administrators – Procedural Compliance • Examples: • Not providing the Notice of Procedural Safeguards when required • Not covering all required components of the IEP at the CCC meeting • Not providing the parent effective written notice • Not providing the IEP in a timely fashion • Not documenting progress monitoring • Not documenting that progress reports were provided to parent

21. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs • Determining FAPE – A legal review analyzes: • Did the School adhere to the procedural requirements? • Did the School provide a meaningful benefit such that the student made educational gains? • The key is to ensure that recommendations are not made solely upon professional opinion but rather data supported conclusions.

22. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs • General Education Intervention: The IDEA amendments cite to research and experience in education that demonstrates that providing incentives for whole school approaches, scientifically based early reading programs, positive behavioral interventions and supports and early intervening services reduces the need to label children as disabled in order to address the learning and behavior needs of children.

23. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs Because of IDEA’s strong emphasis on early intervening services: • Article 7 has focused eligibility as a student with a specific learning disability to include evidence demonstrating that the student is not able to make sufficient progress in response to scientific, research-based interventions. • Article 7 requires a functional behavioral assessment be included to determine a student eligible as a student with an emotional disability.

24. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs Functional Behavioral Assessments511 IAC 7-32-41 • To identify patterns in a student’s behavior, and • [to identify] the purpose or function of the behavior for the student. • FBA may require written consent if it’s an educational evaluation as defined by the definition of “educational evaluation” under Article 7. • Written parental consent is not required when a FBA reviews existing data regarding a student.

25. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs Functional Behavioral Assessments/Systematic Observations • Is there data that measures the frequency of the behavior in relationship to antecedents? • Is there data that measures the frequency of the behavior in relationship to consequences? • Is there data that measures the intensity of behavior? • Is there data that measures the duration of the behavior? • What assessments were used to determine the function of the behavior? (i.e., surveys or rating scales)

26. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs When are FBAs legally triggered to be considered? • When a student’s behavior impedes the learning of self or others. • As part of disciplinary procedures for students who are involved with weapons or drug offenses. • When a student’s behavior is considered to be a danger to self or others.

27. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs Initial Educational Evaluation511 IAC 7-40-4 • A parent may make a request for an evaluation either verbally or in writing. This request must be followed within ten (10) instructional days with written notice. • Requests for evaluations can be made to teachers, principals or other administrators, school counselors, social workers, speech language therapist, or school psychologist. • If a school requests to conduct an evaluation, that request must include written notice to the parents.

28. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs Initial Educational Evaluation511 IAC 7-40-4 Written notice must provideeither: • A description of proposed evaluation procedures; OR • the rationale of why the school will not evaluate along with an explanation of the parent’s right to request mediation or a due process hearing.

29. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs Initial Educational Evaluation511 IAC 7-40-4 If an evaluation will be conducted, written notice must include: • A description of the evaluation procedures; • Timeline for conducting the evaluation and convening a CCC meeting; • How to request a copy of the evaluation report prior to the CCC meeting;

30. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs Initial Educational Evaluation511 IAC 7-40-4 If an evaluation will be conducted, written notice must include: • How to request a meeting with an individual who can explain the results of the evaluation prior to the CCC meeting; • Description of procedural safeguards; and • A list of sources to contact to obtain assistance with understanding Article 7.

31. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs Conducting an Initial Evaluation511 IAC 7-40-5 • An initial evaluation (excluding students believed to be SLD and included in response to intervention procedures) must be conducted within fifty (50) instructional days. • There is flexibility in this timeline when students transfer between districts during an evaluation or when the parent repeatedly fails or refuses to produce the student for the evaluation. • Evaluation reports must compile the findings of the evaluation team members into a single evaluation report.

32. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs Conducting an Initial Evaluation511 IAC 7-40-5 • For students suspected of autism, the evaluation data must be aligned to the characteristics of the autism spectrum disorder. • For students suspected of SLD, the evaluation report must include documentation about notice to parents of the response to intervention procedure, a description of the student’s pattern of strengths and weakness in performance or achievement relevant to determining SLD, and whether the student does not make sufficient progress to meet age and state grade level standards after using a response to invention procedure. Also, members of the evaluation team must certify their opinion in writing.

33. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs CCC Meetings511 IAC 7-40-3 & 7-42-4 • A copy of the evaluation and proposed action (IEP) must be provided five (5) school days before an initial CCC meeting.

34. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs Evaluation • PRACTICE TIPS: • Avoid using grade equivalents or percentiles • Report standard scores and explain • Provide a multidisciplinary summary report • Students must be reevaluated before dismissing from services

35. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs Reevaluation511 IAC 7-40-8 • A reevaluation review must be conducted at least once every three years. • If a reevaluation is solely for the purpose of reestablishing eligibility, then the reevaluation must occur before the next annual CCC meeting. • If the reevaluation is to look at other areas of disability or changes in services related to a different eligibility area, then the reevaluation must occur within fifty (50) school days.

36. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs Reevaluation511 IAC 7-40-8 Written notice to evaluate or refuse a requested evaluation must be provided. This notice must include: • Reasons for the refusal OR • A description of the evaluation procedures, assessments, and records or reports, the evaluation timeline and procedural safeguards. (The refusal may be challenged by mediation or a due process hearing.) (Before the evaluation can occur, written parental consent must be provided.)

37. Proactive Leadership for Special Education Administrators – Defensible Evaluations/FBAs Independent Educational Evaluations 511 IAC 7-40-7 Parent has the right to an IEE if the parent disagrees with an evaluation conducted by the School. If the parent requests an IEE, then within 10 business days the School must either: • agree to pay for the full cost of the evaluation; • or initiate a due process hearing.

38. Proactive Leadership for Special Education Administrators – Defensible IEPs/BIPs CCC Meetings511 IAC 7-42-5 • CCC meetings must timely occur subsequent to an evaluation. • CCC meetings must be convened if a student is not making the progress expected toward goals or in the general education curriculum. • CCC meetings must convened to address any anticipated needs not covered in the student’s current IEP.

39. Proactive Leadership for Special Education Administrators – Defensible IEPs/BIPs CCC Meetings511 IAC 7-42-5 • CCC meetings must be convened to change a required component of the IEP to ensure FAPE. • CCC meetings must occur within 10 school days upon enrollment after transferring into the district. • CCC meetings must occur at least every sixty (60) days when a student is receiving homebound services.

40. Proactive Leadership for Special Education Administrators – Defensible IEPs/BIPs CCC Meetings511 IAC 7-42-5 PRACTICE TIPS: • Keep CCC focused on IEP components. Do not use CCC process as time to problem solve or discuss non-IEP related concerns. • Distinguish “hot” cases from typical CCC. Be more prepared for the “hot” cases. Have a person designated to keep good notes. • Documentation is not just about noting events that occur. Instead, documentation also should note what worked in responding to events or what resulted in follow up.

41. Proactive Leadership for Special Education Administrators – Defensible IEPs/BIPs CCC Participants511 IAC 7-42-3 • A required CCC member (administrative representative, teacher of record, general education teacher, or an evaluation team member after an evaluation) is not required to attend, in whole or in part, if the parent and school agree in writing because that area is not being modified or discussed. • A required CCC member may be excused, in whole or in part, when the meeting involves a modification or discussion of the member’s area if the parent and school agree in writing and the member submits a written report of his/her input to the CCC.

42. Proactive Leadership for Special Education Administrators – Defensible IEPs/BIPs CCC Participants511 IAC 7-42-3 • Adequate notice of CCC must be given to the parent. • A CCC may be conducted without the parent if the parent chooses not to participate in person or by other methods. Records of attempts to arrange a mutually agreed upon date, time and place for the CCC must be maintained.

43. Proactive Leadership for Special Education Administrators – Defensible IEPs/BIPs IEP Components511 IAC 7-42-6 Present levels of performance must consider the academic, developmental and functional needs of the student. PRACTICE TIPS: • Provide updated progress on goals and objectives • Note parent’s input. • Include comments that are good and bad. • Respond to criticism with data.

44. Proactive Leadership for Special Education Administrators – Defensible IEPs/BIPs IEP Components511 IAC 7-42-6 Required special factors to consider include: • The need for BIPs (The IEP itself can serve as a BIP as long as the documentation the parent receives meets all the requirements of 7-32-10.) • Language needs for student with limited English proficiency; • Communication needs for HI or deaf students;

45. Proactive Leadership for Special Education Administrators – Defensible IEPs/BIPs Behavioral Intervention Plans511 IAC 7-32-10 • A plan agreed upon by the case conference committee and incorporated into the student’s IEP. • [a plan that describes] the pattern of behavior that impedes the student’s learning or the learning of others. • [the plan that describes] the purpose or function of the behavior identified in a FBA. • [the plan that describes] positive interventions and supports and other strategies.

46. Proactive Leadership for Special Education Administrators – Defensible IEPs/BIPs Behavioral Intervention Plans511 IAC 7-32-10 • [the plan specifies how interventions and supports] address the behavior. • [the plan specifies how interventions and supports] maximize consistency of implementation across people and setting in which the student is involved. • If applicable, the skills will be taught and monitored in an effort to change a specific pattern of behavior of the student; • The IEP can serve as the BIP as long as the documentation the parent receives meets all the requirements in this section.

47. Proactive Leadership for Special Education Administrators – Defensible IEPs/BIPs BIP/IEP Development • A pattern of behavior or an isolated event? • Behavior occurring in academic or non-academic settings? • If removals are necessary, is there data to support the BIP/IEP to be appropriate as measured by progress? • Does the BIP specify how interventions will be implemented with maximum consistency across settings and people?

48. Proactive Leadership for Special Education Administrators – Defensible IEPs/BIPs BIP/IEP Development • Does regular progress monitoring, review and revision occur of BIPs in the same manner as with goals and objectives? • Is there a classroom management system in place? If so, what occurs for the student when the student is not in that classroom?

49. Proactive Leadership for Special Education Administrators – Defensible IEPs/BIPs IEP documentation • What documentation exists within the IEP to show that the BIP is tied to the FBA? • RTI/ research-based interventions • the progress monitoring • evaluation • Is there a statement of behavior data collected linked to FBA information (including monitoring of BIP/behavior goals)?

50. Proactive Leadership for Special Education Administrators – Defensible IEPs/BIPs IEP Components511 IAC 7-42-6 Required special factors to consider include: • Use of Braille for VI or blind students; • The need for assistive technology; • Any supports necessary to provide school personnel with knowledge and skills to implement the student’s IEP. Any supports identified must specify the types and intent for providing the support related to the staff or student or both. (This may include training needs related to peer-reviewed special education services.)