SPECIAL EDUCATION LAW AND LITIGATION

1. SPECIAL EDUCATION LAW AND LITIGATION Educating Students with Disabilities ED 519 Issues, Laws and Trends in Education Kristin Kern July 25, 2009

2. Special education refers to a range of educational and social services provided by the public school system and other educational institutions to individuals with disabilities who are between the ages of 3 and 21. It is designed to ensure that students with disabilities are provided an environment that allows them to be educated effectively. *Continuum of services Remember… Special Education is a service, not a place!

3. 13 Disability categories Mental retardation (MR) Emotional Disturbance Orthopedic impairment Hearing impairment Deafness Speech or language impairment Visual impairment Autism Traumatic brain injury (TBI) Other health impairment (OHI) Specific learning disability (SLD) Deaf-blindness Multiple disabilities “Adversely affect educational performance” Needs Specially Designed Instructions (SDI) Determination made by an evaluation team. *In PA, all children eligible for special education have the right to… Eligibility – must meet all qualifications

4. FAPE Free Appropriate Public Education Educational right of children with disabilities guaranteed by Section 504 of the Rehabilitation Act and IDEATo provide FAPE, schools must provide students with “an educational program that is individualized to a specific child, designed to meet that child's unique needs, provides access to the general curriculum, meets the grade-level standards established by the state and from which the child receives an educationalbenefit”.The failure of the parents to object does not excuse the failure of the school district to provide FAPE.Why?The Courts have indicated that it does not depend on parents to know if an educational program is appropriate—schools are the experts.

5. FAPE • Without charge to preschool, elementary or secondary students (except for fees that are charged for all students) • At public expense • In conformity with an IEP • “Reasonably calculated to enable the child to receive educational benefits” • Designed to meet that one student’s unique needs (academic and functional) • Provides access to the general curriculum (approximate grade-level standards of the state) • Least Restrictive Environment (LRE=the extent to which students participate in regular education classroom) • Protections under FERPA • Under public supervision and direction • Prepares the child for further education, employment and independent living • Includes related services

6. Related Services *Related services are transportation and/or developmental, corrective and other supportive services required to assist a child with a disability to benefit from special education. This includes speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. The term also includes school health services and social work services in schools. • OT • PT • Van transportation • SL • BIP • Assistive technology devices • PCP

7. The Process… • Evaluation– gathers information used to determine if special education is needed -school psychologist, teachers, related service providers, parents -review of testing/assessments, classroom observations, disability, programs and services -”permission to evaluate” = 60 school days to complete -ER given to parents at least 10 days prior to Individualized Education Program (IEP) meeting -RR – every three years, unless MR, then every 2 years • Individualized Education Program (IEP) – a description of all the programs and services necessary to help the student be successful and help meet the unique educational needs; “cornerstone of student’s educational program” -written by the TEAM Parents General education teacher Special education teacher Local Education Agency Representative (LEA) Related Service Providers Student (age 16) Transition representative (if applicable) -must have first four! -parents can choose not to attend and meeting can still be held -completed within 30 calendar days after ER -implemented no later than 10 school days after IEP meeting -reviewed and updated every year

8. The Process (continued)… • IEP contents -annual goals – expected to learn during the year -short term objectives – sequential steps to reach goals **only if taking PASA -present levels of performance -strengths and needs -services and programs (where, what kind, how much, how often) -method of evaluation – is student meeting goals? -report of progress -how much, if any, will the student not participate in the general ed. class (i.e. special education classroom) -specially designed instructions (SDI) & supplemental aids and services -accommodations and modifications -participation in state and local assessments -participation in extended school year (ESY) if applicable -transition planning – prepare for life after school/from school to work--overall look at education/training, job placement, living arrangements, community life -disciplinary methods (especially for children with emotional and behavioral issues)=BIP -calculation of LRE -- percentage reported on the Penn Data system (federally mandated)

9. Difference between… Accommodations • changes made to the teaching procedures to create an equal opportunity to demonstrate knowledge and skills without altering curriculum • gives students equal access to curriculum, a way to be successful and offer a way to demonstrate what they have learned Modifications • altering content, instruction or learning outcomes for diverse student needs • curriculum is changed quite a bit • students with disabilities are not expected to master the same academic content as others in the classroom For example: A child with poor writing skills may use a word processor or tape recorder to take a spelling test instead of pencil and paper = accommodation. A child who can't learn the twenty-word spelling list every week may learn only ten words = modifcation.

10. You can’t write an IEPwithout a plan • Where are you now? *Present Levels of Performance=prove you know the student • Where do you want to go? *Annual Goals • How will you get there? *Specially Designed Instructions (SDI) • How do you know that you have arrived? *Assessment *Progress Monitoring* *Progress Monitoring is an ongoing process of assessment and evaluation. • Collecting and analyzing data to determine progress • Making instructional decisions based on that data • Determine if instructional method is working • Determine correct instructional levels • Report progress

11. Even More… • Educational Setting -IEP developed first, then look at where the program will be provided **always consider the general education classroom first in the neighborhood school =continuum of services -law requires children with disabilities be placed with students who are non disabled as much as possible = LRE -general education is not appropriate if the special needs cannot be met there even with supplemental aids and services -school districts need to make classes available LS-greatest need in academic areas (LA and math) LSS-greatest need to learn skills to live and work independently ES-greatest need for social, emotional and behavioral help SSS (sensory support skills)-require help with limited vision or hearing SLS-difficulty in speaking and communicating PS-programs consider physical disabilities Autistic support MDS-children with multiple disabilities (many services and much support) • Finalizing -provide parents with Procedural Safeguards* -provide parents with a Notice of Recommended Educational Placement (NOREP) --what the district is proposing or refusing --other options considered and why they were rejected -parents must approve and sign NOREP before school is allowed to implement IEP *No NOREP—No services!

12. Procedural Safeguards *Procedural safeguards are designed to protect the rights of children with disabilities and their families, and to ensure that children with disabilities receive FAPE. This booklet gives families: • Right to review all educational records • To be equal partners on the IEP team, along with the school staff • To participate in all aspects of planning their child’s education including placement • To file complaints with the state education agency • Request mediation or a due process hearing

13. Due Process—Rights of the ParentsIf a parent does not believe their child’s special education program is working, they can request… • “Stay Put” rule= once a request is made, current educational placement cannot be changed by the district 1.) Prehearing Conference -school district (SD) and parent agree to try to resolve the matter by meeting—school must go! -must be held within 10 calendar days of request -parents have the right to bring advocate, lawyer etc. 2.) Mediation -free, voluntary, confidential/neither side is required to attend -take place at any time -cannot be used to delay or deny steps -Office for Dispute Resolution arranges for neutral, specially trained mediator -meets with both sides, separately and together but does not make a decision -helps reach an agreement; put in writing and into IEP -neither SD nor parents can bring a lawyer

14. Due Process (continued) 3.) Due Process Hearing -parents need to give to the SD a description of the problem and a proposed solution -within 15 days, SD must hold resolution session—opportunity to resolve complaint (can be waived if both parties agree) -within 30 days have due process hearing before impartial hearing officer -both sides can have lawyers and witnesses -parent can have hearing officer subpoena anyone from the SD to testify -written material to be used given to both sides -hearing officer makes written decision within 45 calendar days • Parents can have attorney’s fees paid by the district if decision in their favor. • Parents ordered to pay the SD costs if found to pursue a complaint to harass, cause unnecessary delay or increase cost to the district. • If parents not satisfied with hearing officers decision, can appeal to the Special Education Appeals Panel. • If disagree with this, parents can file an appeal in commonwealth or federal court.

15. School Discipline and Students with Disabilities • IEP team must consider the behaviors -Do the child’s behaviors hurt the child’s ability to learn? -Do the child’s behaviors hurt other students’ ability to learn? • Decide on positive behavioral interventions • Complete a functional behavioral analysis (FBA)-evaluation of what things caused behavior • Include a BIP in IEP • State law requires a SD to inform the family and the student if intending to suspend or expel—students have extra protection under special education law • Parents given NOREP --how student will be disciplined and why --options SD considered --opportunity to agree or disagree • Parents agree?—SD can discipline but not more harshly than non-disabled student • Parents disagree?—figure out if counts as a “change in placement” (CIP) -Students with MR=any suspension, expulsion or transfer to another school is a CIP -Any other students with IEP’s=expulsion is a CIP; suspension or transfer to another ed. setting (alternative school) for more than 10 school days in a row OR more than 15 total school days in the school year is a CIP

16. School Discipline and Students with Disabilities • Yes to a CIP? --school must hold a manifestation determination meeting • Was the behavior a manifestation of the child’s disability? -meeting within 10 school days of proposal of CIP -IEP team review files, IEP, observations, parent information 1. Was the child’s misbehavior caused by, or directly and substantially related to, the child’s disability? (i.e. hearing impairment) 2. Was the child’s misbehavior a direct result of the school’s failure to follow the child’s IEP? (i.e. BIP with a sub) • Yes to either one and all agree? -- conclude the misbehavior was a “manifestation” of disability and student CANNOT be suspended, expelled, or transferred as punishment for the misbehavior *exceptions involve drugs, weapons, or serious injury to another person -must do a FBA to find triggers and preventions • No and all agree? – not a “manifestation” of disabilityand school can discipline with suspension, expulsion or transfer

17. School Discipline and Students with Disabilities Did you know?... • State law says any student who is suspended has the right to make up the school work, even if the suspension is so short that it doesn’t count as a CIP. • If a school changes the placement of a child with a disability through suspension, expulsion or transfer, federal law requires the school to provide enough educational services to participate in the general education curriculum and make progress on IEP goals.

18. School Discipline and Students with Disabilities • School decides not a “manifestation” and parent disagrees?– SD may discipline and parent can request due process hearing -hearing concluded within 20 school days -if hearing officer agrees with parent, student returns to placement • “Special circumstances” involves illegal drugs, weapons, selling prescription drugs or serious bodily harm to another person at school or a school-related activity • If misbehavior is a “special circumstance,” the school can immediately move student to an alternative educational setting for up to 45 school days even if the child has mental retardation, and even if the school agrees with the parent that the misbehavior was a “manifestation” of the student’s disability.

19. 1.) All staff not seeing the IEP 2.) Refusal to implement IEP because it does not fit a teaching style 3.) Failing to make clear who will implement/take a role in the IEP 4). Failing to provide staff training 5). Failing to deliver what was promised in the IEP 6.) Failing to provide services at the appropriate time 7.) Failure to offer a continuum of services 8.) Failure to consider less restrictive options with supports 9.) Taking a “one size fits all” approach Implementing the IEP and placement issues--ultimately landing in Due Process and/or Court…

20. 1.) Failure of “Child Find” school districts must locate, evaluate and identify all eligible children residing in the district standard is “knew or should have known” 2.) Failure to include classroom teachers 3.) Failure to perform an FBA if behavior issue 4.) Failing to fully develop present ed. levels 5.) Not following up on recommendations made in the evaluation 6.) Failing to do a thorough evaluation 7.) Failure to consider a 504 if not IEP eligible 8.) Not discussing extended school year (ESY) at every IEP meeting Claims that will not hold up in Court “The parent agreed that we could do it this way”. “We didn’t tell the parents, but the IEP wasn’t working so we just decided to change some things”. “It might have worked, but the student wasn’t cooperating”. Evaluation issues--ultimately landing in Due Process and/or Court…

21. On a “lighter” note…U.S. Department of Education statistics 2009 Approximately 600,000 children, ages three to five, are served by special education services. In preschool children, the most prevalent disability is speech or language impairment. Approximately 6.5 million students, ages six to 21, are served by special education services. Common disabilities among this group include specific learning disability, speech or language impairment, mental retardation and emotional disturbance. ________________________________________________ Fourteen percent of students with disabilities in elementary and middle school have been expelled or suspended at some point in their school careers. Emotionally disturbed students have the highest drop-out rate (35%), while deaf-blind students have the lowest rate (4%). Students with learning disabilities and speech disorders have the lowest rates of unemployment.

22. Legislative History • Rehabilitation Act of 1973 -prohibits discrimination on the basis of disability in programs that are conducted by federal agencies or receives financial assistance • Section 504 -federal law designed to protect the rights of individuals with disabilities in programs and activities that receive Federal financial assistance from the U.S. Department of Education -states “no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." -recipients of Federal financial assistance include public school districts, institutions of higher Education and other state and local education agencies -requires a school district to provide FAPE to each qualified student with a disability who is in the school district's jurisdiction, regardless of the nature or severity of the disability. -FAPE consists of the provision of regular or special education and related aids and services designed to meet the student's individual educational needs as adequately as the needs of non disabled students are met. -in the public schools = requirements common include reasonable accommodation for students with disabilities, program accessibility, effective communication for people with hearing or vision disabilities and accessible new construction and alterations

23. Legislative History • Education for All Handicapped Children Act (EHCA) PL 94-142 1975 -enacted by United States Congress requiring all public schools receiving federal funds to provide equal access to education for children with physical, mental or behavioral disabilities=FAPE -evaluate students and develop program=IEP -school districts provide administrative procedures so parents could dispute decisions -from there parents could seek judicial review=due process • Before the EHCA statute was enacted, U.S. public schools educated only 1 out of 5 children with disabilities. Until that time, many states had laws that explicitly excluded children with certain types of disabilities from attending public schools (blind, deaf, and children labeled emotionally disturbed or mentally retarded). • At the time the EHCA was enacted, more than 1 million children in the U.S. had no access to the public school system. Many lived at state institutions where they received limited or no educational or rehabilitation services. Another 3.5 million children attended school but were “warehoused” in segregated facilities and received little or no effective instruction.

24. Legislative History • Family Education Rights and Privacy Act (FERPA) 1974 -federal law protecting the privacy of student’s educational records--applies to all schools receiving funds under U.S.Dept of Ed. -gives parents and students over 18 (eligible) the right to inspect and review education records kept by the school (schools are not required to provide copies of records unless it is impossible to review the records schools may charge) -parents or eligible students have the right to request that a school correct records which they believe to be inaccurate or misleading—if denied, right to a formal hearing. -schools must have written permission from the parent or eligible student in order to release any information from a student's education record -FERPA allows schools to disclose those records, without consent, to: School officials with legitimate educational interest Other schools to which a student is transferring; Specified officials for audit or evaluation purposes Appropriate parties in connection with financial aid to a student Organizations conducting certain studies for or on behalf of the school Accrediting organizations To comply with a judicial order or lawfully issued subpoena Appropriate officials in cases of health and safety emergencies State and local authorities, within a juvenile justice system, pursuant to specific State law -schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards and dates of attendance -schools must tell parents and eligible students about directory information and allow a reasonable amount of time to request that the school not disclose directory information about them *The act is also referred to as the Buckley Amendment, named for one of its proponents, Senator James L. Buckley of New York.

25. Legislative History • Americans with Disabilities Act (ADA) 1992 -prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training and other terms, conditions and privileges of employment -in order to be considered qualified, the individual must be able to perform the job with or without accommodations. -a company must make an accommodation for a qualified employee as long as it wouldn't impose an “undue hardship” on the business • ADA Title II -covers all activities of state and local governments regardless of the government entity's size or receipt of federal funding -requires that state and local governments give people with disabilities an equal opportunity to benefit from all of their programs, services and activities =public education -must relocate programs or otherwise provide access and communicate effectively with people who have hearing, vision, or speech disabilities -required to make reasonable modifications to policies, practices, and procedures where necessary to avoid discrimination, unless they can demonstrate that doing so would fundamentally alter the nature of the service, program, or activity being provided.

26. Least Restrictive Environment (LRE) • The U.S. Department of Education states “...to the maximum extent appropriate, children with disabilities including children in public, private institutions or care facilities, are educated with children who are nondisabled and special classes, separate schooling or other removal of children with disabilities from regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily”. • LRE is the environment most like that of typical children in which the child with a disability can succeed academically (as measured by the specific goals in the student's IEP). • While the majority of children with disabilities are taught at least part time in a general classroom setting, many children are segregated, most often due to a lack of staff and resources to support special needs students in general classrooms. • This stipulation that special-needs children be educated in the least restrictive environment led to the practice of inclusion, which is the policy of placing special education students in regular classrooms as much as possible with the necessary supports and services. Separate resource rooms where students receive individualized instruction, tutoring and/or review still exist. *Remember the Continuum of services

27. Legislative History • Individuals with Disabilities Education Act (IDEA) Public Law 105-17 1997 -Education for All Handicapped Children Act (EHCA) 1975 was renamed IDEA ’97, signed by President Bill Clinton on June 4, 1997 -this law ensures services to children with disabilities throughout the nation and governs how states and public agencies provide early intervention, special education and related services to eligible infants, toddlers, children and youth with disabilities -infants and toddlers with disabilities (birth-2) and their families receive early intervention (EI) services under IDEA Part C. Children and youth (ages 3-21) receive special education and related services under IDEA Part B. -expanded special education services by mandating that all children with disabilities—regardless of the type or severity of their disability—between the ages of three and 21 years are entitled to FAPE, including related services designed to meet their unique needs and prepare them for employment and independent living -continues to provide FAPE, LRE and guarantees parents procedural safeguards and due process rights -Congress viewed the reauthorization process as an opportunity to strengthen and improve IDEA by: --strengthening the role of parents --ensuring access to the general education curriculum and reforms --focusing on teaching and learning while reducing unnecessary paperwork requirements --assisting education agencies in addressing the costs of improving special education and related services to children with disabilities --giving increased attention to racial, ethnic, and linguistic diversity to prevent inappropriate identification and mislabeling --ensuring that schools are safe and conducive to learning --encouraging parents and educators to work out their differences

28. Legislative History • Individuals with Disabilities Education Improvement Act (IDEIA) H.R.1350 2004 (may also be referred to as IDEA 2004) -reauthorized IDEA ’97, signed by President George W. Bush on December 3, 2004 -kept many of the provisions of IDEA ’97 but made some amendments: • FAPE • LRE • Guarantee of due process and procedural safeguards • Participation in state and district assessments, with or without accommodations • Development of state & district alternate assessment with guidelines(PASA) • Enhanced parental participation in eligibility & placement decisions • Streamlined student evaluation & reevaluation requirements • Mediation to resolve parent-school differences • Developmentally delayed identification expanded for ages 3-9 at discretion of state & local education agency • Alignment with the No Child Left Behind Act (NCLB) • Changes in discipline procedures • Prevention of “over-identification” • Changes in initial evaluation and reevaluation • “Highly Qualified Teachers” • Changes to IEP team meetings • Procedural Safeguards regarding surrogates • Procedural Safeguards regarding mediation and resolution sessions • Procedural Safeguards regarding Due Process Hearings • State Funding • Local Funding

29. Some Amendments of IDEIA/IDEA 2004 • “Core academic subjects” =english, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography • States may use part of their allocations from the government to support the development and provision of appropriate accommodations and alternate assessments that are valid and reliable for assessing the performance of children with disabilities. • The State must establish goals and performance indicators to assess progress of children with disabilities (and include them in AYP). *Requires reporting annually to the secretary and the public on the progress of the State and of children with disabilities in the State • The state must develop alternate assessments that are the aligned with the State's academic content standards and measure the achievement of children with disabilities against those standards. • A child must not be determined to be a child with a disability because of a lack of appropriate instruction in reading or math or limited English proficiency. • School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement is appropriate for a child with a disability who violates a code of student conduct. • Differences between IDEA 1997 and IDEA 2004 http://www.fcsn.org/IDEA_Comparison_97_to_04.pdf

30. Criticisms of IDEA 2004 From schools… • Excessive procedures and paperwork • IDEA protects children and parents but not districts, schools and teachers • There are no exceptions to IDEA -- no child is so severely disabled as to not qualify for educational services under IDEA. Even children who have severe brain damage still qualify for FAPE. This means that schools can be required to provide "educational" services to children who have no capacity for voluntary movement, no ability to communicate and no indication that they recognize their own names or their parents' faces. • Under related services, schools are specifically required to pay for many kinds of medical treatments, including speech therapy, audiology, physical therapy, and nursing, if the medical treatment is expected to help the student's education. There is no requirement that private health insurance be used when available.

31. Criticisms of IDEA 2004 From parents… • Criticize schools for not following laws in designing and implementing IEPs and enforcement is scarce and ineffective • Impartial Due Process hearing officers are not impartial • Districts spend thousands of dollars fighting against parents who want services for their children rather than providing the services, which are often much less expensive than the attorney's fees • Schools and districts may retaliate against families who advocate for their children, sometimes retaliating against the children themselves • Minorities are overidentified as having learning disabilities, emotional disturbaces, and mental retardation • Some students do not obtain effective transition skills and information necessary for when they exit special education and out into the real world. They are essentially dumped without any idea of the available community resources

32. NCLB Stresses external comparison outcome standards Requires proficiency of state standards Assumes any “gap” among all groups of children can be closed IDEA Stresses meeting individual needs Requires program reasonably calculated to show individual progress Not concerned with a “gap” but the individual child NCLB v. IDEASomething to think about…

33. Two Big Issues Compensatory Education • a legal term used to describe future educational services' which courts award to a disabled student under IDEA “for the school district's failure to provide FAPE in the past” • courts have awarded it to “grant such relief as the court determines appropriate” Tuition Reimbursement • big issue of debate between special needs children and private school tuition reimbursement • debate has raged since the inception of IDEA • early 1980's Supreme Court established that special needs children are entitled “only to appropriate educational services and not the best services available” • parents have been litigating this issue since then in hope of gaining the right to educational alternatives for children with disabilities • There have been many cases before the courts regarding these issues. (They are still going strong today).