JENNIFER SEGAL [email protected] MIKE BENDER [email protected] BRUSTEIN & MANASEVIT, PLLC FALL...

JENNIFER SEGAL [email protected] [email protected] & MANASEVIT, PLLCFALL FORUM 2014

Ensuring Students with Disabilities are Served

Topics Covered

BRUSTEIN & MANASEVIT, PLLC

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DisciplineResponse to Intervention IEP TeamsDocumentation Payment for related services and residential

treatment

Legal Resources


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• IDEA Website - http://idea.ed.gov/

• Code of Federal Regulations: 34 CFR Part 300 • http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/

Title34/34cfr300_main_02.tpl• http://idea.ed.gov/download/finalregulations.pdf


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DISCIPLINE

What To Do When a Child is Disciplined?34 CFR §§ 300.530 – 300.536


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1.Is the child identified as a child with a disability?o NO = No IDEA protections. (34 CFR § 300.534(d))

Has an evaluation been requested after or during discipline? If yes, then expedited evaluations Stay Put does not apply. Child remains where placed by the

LEA.o YES = Determine if Change of Placemento NO, BUT the public agency had knowledge that the child

was a child with a disability before the behavior occurred = Determine if Change of Placement. (34 CFR § 300.534(a-b))• Parent expressed in writing that child needed special education

services• Parent requested an evaluation• School personnel expressed specific concerns about a pattern of

behaviors to the director of special education or other supervisory personnel

Was the Removal a Change of Placement? 34 CFR §§ 300.530 – 300.536


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2. Was the Removal a Change of Placement?

Based on “Unique Circumstances of Child” (34 CFR § 300.530(a))

Removal ≠ change of placement (34 CFR § 300.536) 10 consecutive school days or less Series of short-term removals that are not a

pattern (even if greater then 10 days) Determined by the public agency, but subject to

review through due process (34 CFR § 300.536 (a)(2))• (a) Length of each removal; (b) Total time removed;

(c) Proximity of removal; (d) Behavior not substantially similar; etc.

Was the Removal a Change in Placement?34 CFR §§ 300.530 – 300.536


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Removal = change of placement (34 CFR § 300.536) Exceeds 10 consecutive school days Series of short-term removals that are a pattern Special Circumstances

45-day removal – drugs, weapons, serious bodily injury to another (34 CFR § 300.530(g))

Hearing officer removal - 45-day removal requested by LEA through due process bc substantially likely to injure self or others in current placement (34 CFR § 300.532)

Parent Notification (34 CFR § 300.530(h))

Case Study #1: 45 Day Removal


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D.R. is a second grader with an IEP and a primary disability of ED. Last Tuesday, D.R. and a friend were drawing during an after-school enrichment program held by the school. D.R. realized that small pencil sharpener had a blade in it. After a little finagling, D.R. was able to remove this blade and began to pretend to have a sword fight with his friend. The play sword-fighting quickly turned south and D.R. cut his friend’s finger. D.R.’s friend required three stitches.

Believing that D.R. had used the blade as a weapon to cause serious bodily injury, the school removed D.R. for 45 days.

Question: Was the school justified in removing D.R. for 45 days?

Was the Removal a Change in Placement?34 CFR §§ 300.530 – 300.536


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o Change of Placement? No: Done (document decision) (possible exception

34 CFR § 300.530(d)(4)) Yes: Manifestation Determination (34 CFR §

300.530(e)); Functional Behavior Assessment; and Behavior Intervention Plan (34 CFR §

300.530(d)(1)(ii), (f)(1)(i))

A Manifestation of the Child’s Disability?34 CFR §§ 300.530 – 300.536


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3. Was the behavior a Manifestation of the Child’s Disability? (Decided By IEP Team) No – Stay Put does not apply (300 CFR § 300.530(c)) Yes – Manifestation Determination (300 CFR §

300.530(f)) Stay Put: Child Remains in School Exceptions 45-Day Removal

Case Study #2: MDR


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A.D. is a student diagnosed with ADHD and found eligible for special education and related services with a primary disability of OHI. One day in class, A.D. begins to repeatedly poke another student with a pencil, which causes a fight. The teacher sends A.D. to the principal’s office to reset. Within ten minutes of entering the principal’s office, A.D. begins talking loudly with another student and is removed to an empty special education meeting room.

While in the SPED meeting room, A.D. sits calmly for 10 minutes but then, angry at being sent out twice, gets up and flips over the SPED director’s chair. He is then calm for another 10 minutes before knocking everything except the laptop off the director’s desk. Once discovered, A.D. is suspended for 3 days, which brings his total days suspended over 10.

Question: Was the student’s behavior a manifestation of the student’s disability?

Are Services Required? 34 CFR § 300.530(d)(4) & (d)(5)


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4. Are services required?o If not a change of placement: MAYBEo 10 day rule: no services required for first 10

school days of disciplinary removal in school year unless services are provided to a child without disabilities who is similarly removed.

LEA can always decide to provide services even when not required

o If a change of placement: YES (34 CFR § 300.530(d)) IEP team decides on services (allow child to continue to

participate in general education curriculum, although in another setting and progress on IEP); services mandatory

45-day removal, services may be determined by Hearing Officer

Disciplinary Options


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Best Practices


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Written policies and proceduresStaff training on policies and proceduresRegular communication between special

education department and administration (or staff responsible for discipline)

Established forms and form letters

Expedited Hearings


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o Expedited Hearing? (34 CFR § 300.532) Parent Appeals Manifestation Determination LEA Requests 45-day removal by hearing officero Timeframes?

Hearing – 20 school days of date complaint filed Resolution meeting (unless waived) w/in 7 days of date

complaint notice received Hearing proceeds, unless matter resolved w/15 days of date

complaint received Decision – 10 school days after hearing

o Placement during Appeal? (34 CFR § 300.533) Child must remain in the alternative education setting

pending the decision of the hearing officer or until the expiration of the 45-day placement or disciplinary action, whichever occurs first.

Discipline and Civil Rights


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“[E]vidence of significant disparities in the use of discipline and aversive techniques for students with disabilities raises particular concern for the Departments.”

Additionally, SWDs under IDEA and 504 represent 14% of students, but represent 76% of students who are physically restrained by adults in their schools.

See ED’s Civil Rights Office and DOJ Guidance, January 2014


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Response to Intervention (RTI)

Response to Intervention (RTI)


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Process for determining that a child is a child with a specific learning disability based on a child’s response to scientific, research-based intervention.

Why is RTI included in IDEA? To ensure that underachievement in a child

suspected of having specific learning disability (SLD) is not due to lack of appropriate instruction

Intent of Congress to more accurately distinguish between children with SLDs from those whose learning difficulties could be resolved with more specific, scientifically based, general education interventions.

Response to Intervention (cont.)


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What about RTI for determining other disabilities? Court found that use of RTI did not relieve

obligation to: (a) evaluate the Student for other IDEA disabilities,

such as Other Health Impairment, including ADHD; (b) use a variety of assessment tools; and (c) complete the evaluation within the timeline

established by IDEA and its implementing regulations.



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If you use RTI Strategies, LEAs must promptly request parental consent to evaluate a child if the child has not made adequate progress after an appropriate period of time. However, the regulations do not specify a timeline

for using RTI or define “adequate progress.” Timeline will vary depending on circumstances but

generally not acceptable to wait several months * Parent may request an evaluation at any time during

the RTI process (RTI does not replace evaluations)



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o Allowable uses of IDEA funds for RTI: CEIS funds may be used in coordination with ESEA

funds, but must supplement and not supplant ESEA funds for those activities and must not support students already identified as students with disabilities (IDEA ARRA guidance)

CEIS funds may be used for behavioral interventions for non-identified students who need additional support, as part of school climate reform (ED Letter, Sept 2013 on maximizing flexibility)

If IDEA consolidated in schoolwide plan, may use consolidated IDEA program funds to implement RTI (IDEA ARRA guidance)

Best Practices


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Written policies and procedures (including definitions of “adequate progress” and “appropriate period of time”)

Training to staff on policies and procedures Provide some training even to staff not directly involved

Regular communication between RTI staff and Special Education Department

Clear communication to parents regarding what RTI is and their child’s progress

Take RTI meeting notes


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IEP TEAM MEETINGS

Types of Meetings


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EligibilityIEP Development Annual MDROther

Responsibilities of IEP Teams


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Review evaluations and dataDetermine eligibilityDevelop IEP

Placement Services Supports

Review IEP annually and when necessaryManifestation determination when

necessary Appropriate services if a change in placement is

warranted

Address other concerns as need arises

IEP Team Members34 C.F.R. § 300.321


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CORE MEMBERS Parent At least 1 regular ed

teacher, if child participating

At least 1 special ed teacher/provider

LEA representative LEA can designate

member Individual who can

interpret evaluation results

MAY BE REQUIRED Individuals with special

knowledge or expertise on child

Related services personnel

Child, when appropriate

Invite transition service agency representatives

Invite Part C service coordinator/rep, if parent requests

Who Can Miss an IEP Meeting?


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Required members may be absent: For all or part of meeting, if LEA and parent agree in writing

Meeting without parent: Permitted, but need documentation of attempts to

arrange mutually agreed on time and place. 34 C.F.R. § 300.322(d)

What if a Member Misses an IEP Meeting?


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If the missing IEP team member’s area or related service is not modified or discussed No input is needed

If the missing IEP team member’s area or related service will be modified or discussed Member must provide written input on development of

the IEP prior to the meeting

Best Practices


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Written policies and proceduresTraining staff on policies and proceduresEnsure an LEA representative with decision

making authority is present Hold meeting if a new concern arises or

services change – don’t wait for the annual review meeting

Maintain documentation Meeting invitation Attempts to schedule meeting (if no parent) Written input if appropriate Meeting notes

Documentation


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“I’m a hoarder. For me, documentation has always been key, and I’ve kept

everything from my past.”– Diane Keaton

The Basics


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IEPsEvaluationsMeeting NotesService Tracking Logs

See EDGAR 76.731 (grantees and subgrantees must maintain records to demonstrate compliance with all program requirements)

Where and how are these documents maintained?

Prior Written Notice34 C.F.R. § 300.503


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Must be given to parents if the LEA proposes or refuses to initiate or change the following: Evaluation of a child, Identification of a child, Educational placement of a child, or Provision of FAPE to a child.

Notice Must Include: reasons for action or refusal and include available procedural safeguards

Progress Data


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Progress Reports Detailed information on progress (or lack of progress)

on each goal How often?

Testing Data State Tests Academic Achievement

Behavior Data


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Behavior tracking logsBehavior Intervention PlanIncident ReportsSuspension/Expulsion records Letters re: Discipline

Align general disciplinary communications with IDEA requirements

Clearly indicate what the process is for students with disabilities

Communication with Parent


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LettersPhone LogEmails

The single biggest problem in communication is the illusion that it has taken place. - George Bernard Shaw

Transmitting Student Records


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Generally, follow Family Educational Rights and Privacy Act (FERPA)

Except if student transfers to a private school LEA must obtain parental consent prior to releasing

personally identifiable records to the private school

Parent request for student records SEA/LEA has 45 days to respond If third party (attorney/advocate) is requesting records,

must have release signed by parents What must be provided?

Best Practices


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Written policies and procedures What must be retained? Where are records retained?

Training staff on policies and proceduresEstablished forms and other documentsMonitoring records and data


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Payment for Related Services and Residential Treatment

Related Services


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Transportation, developmental, corrective and other supportive services required to help a disabled child benefit from special education Includes: interpreting services, physical and

occupational therapy, speech-language pathology and audiology, counseling, therapeutic recreation, etc.

Excludes: surgically implanted medical device or replacement

34 C.F.R. § 300.34


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• To determine whether a service is a related service, courts will consider:1. whether the service is required to enable the child

to receive an educational benefit, and 2. if it is excluded as a medical service.

Related Services


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Responsibility of public agency to provide service to student if the court determines: the service is required for the student to

receive an educational benefit; and it does not fall within the medical exception

Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980) (finding that Clean Intermittent Catheterization (CIC) fell within the statutory definition of related services because without CIC the child could not be present in the classroom at all and thus could not benefit from her special education).

Related Services


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If the service is: Not educational in nature; and Does not impact the student’s ability to benefit from his or her

education, Such service would not be considered a related

service that a District would have to provide under the IDEA.

Fetto v. Sergi, 181 F. Supp. 2d 53, 60 (D.Conn. 2001) (hearing officer found that several wrap-around services, including respite care in the home and a community mentor, were not educational in nature and therefore the District was not required to pay for such services)

District of Columbia Public Schools, 110 LRP 30885 (July 30, 2009) (hearing officer found that wrap-around services, including counseling and community support services were required for student to be successful in attending school and obtaining an educational benefit)

Related Services

Residential Treatment


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In the context of residential placements, where a related service is necessary for an educational purpose, it is reimbursable under the IDEA. Where the related service has a predominantly medical purpose, it is not reimbursable. Kruelle v. New Castle County School District, 642 F.2d 687

(3rd Cir. 1981); 34 C.F.R. 300.104. Courts have found that where the requirement

for a residential placement based on medical, social or emotional problems that are segregable from the learning process, the residential treatment was for a medical purpose and therefore not reimbursable. Mary T. v. Sch. Dist. or Philadelphia, 575 F.3d 235 (3rd Cir.

2009)(citing Kruelle, 642 F.2d 687).


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Educational Benefit: is the IEP likely to produce progress, not regression, and does the IEP afford the student with an opportunity greater than mere trivial advancement?

M.K. ex rel. Mrs. K v. Segri, 554 F. Supp. 2d 201, 222 (D.Conn. 2008) (the student had significant behavior problems at home but continued to make satisfactory academic progress in school, the court found that the student’s residential placement was not a related service for which the school district could be held financially responsible)

Mrs. B. v. Milford Bd. of Educ., 103 F.3d 114 (2d Cir. 1997) (the student’s academic regression was primarily due to student's emotional issues which could not be dealt with outside of a residential setting, the court found that the District was required to pay for the entire cost of the student’s residential placement)

Educational Benefit?

Best Practices


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Written policies and proceduresTraining to staff on policies and procedures Continuum of services State/District policies on high cost/highly

restrictive services


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This presentation is intended solely to provide general information and does not constitute legal

advice or a legal service. This presentation does not create a client-lawyer relationship with Brustein &

Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional

Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of

this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You

should not take any action based upon any information in this presentation without first

consulting legal counsel familiar with your particular circumstances.

JENNIFER SEGAL [email protected] MIKE BENDER [email protected] BRUSTEIN & MANASEVIT, PLLC FALL...

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