ANNUAL GOALS

Annual goals identify area where a student needs special education services or specially designed instruction. The purpose of goals is to permit the IEP team to evaluate whether a student is making progress in an area of need.  Goals can be functional or academic.

There are no legal limits on the number of goals an IEP can contain. For each area in which a special education student has an identified need, the IEP team must develop measurable annual goals. (CA ED Code Section 56345) If the student has one area of need, they will have one goal. If they have five areas of need, they will have five goals.

Annual goals must be based upon the student’s present level of academic achievement and functional performance, and which the child has a chance of attaining within a year. (CA ED Code Section 56345; Parents v. Del Mar Unified School Dist.. (2017) OAH# 2017010586). Development of the IEP, including goals, is a fact-intensive exercise. (Endrew F. ex rel. Joseph F. V. Douglas County School Dist. RE-1 (2017) 137 S. Ct. 988). The Supreme Court in Endrew held the IEP must be drafted in light of the child’s circumstances. A majority of an IEP meeting should focus on this fact-intensive exercise.

When the IEP goals fundamentally fail to address the student’s needs based on a misunderstanding of the district’s obligations under the IDEA, there is a de facto failure to meet the requirements of federal and state law. (Parents v. Liberty Union High School Dist. (2017) OAH# 2017020873). In the Liberty case, the school district did not believe they had an obligation to remediate fundamental reading and spelling weaknesses of a high school student. They believed they were only required to provide accommodations and modifications which would allow the student to access the curriculum. OAH disagreed.

As you prepare for your child’s IEP meeting, in addition to other documents the school will rely upon, be sure to request a copy of any draft present levels of performance and goals which will be shared among school district personnel prior to the meeting. If you cannot understand how the two documents relate to each other and allow you to measure progress, contact Kristin Springer at (925) 551-1041 to discuss the legal sufficiency of the documents. It is easier to correct procedural errors before they happen.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

 

IDEA CLAIMS: THE TWO YEAR STATUTE OF LIMITATIONS

The IDEA is a federal law enacted to ensure every child with special needs is afforded a free and appropriate education. Prior to 2004 the IDEA did not contain a statute of limitations. In 2004, Congress reauthorized the IDEA and added a two-year statute of limitations. A statute of limitations is a law which sets out the maximum time that parties have to initiate legal proceedings from the date of the alleged offense.

Parents and school districts are entitled to file due process complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free and appropriate public education of such child. (20 USC Section 1415(b)(6)(A)). The two-year statute of limitations for filing due process applies equally to a parent’s request for an IEE. (Placentia-Yorba Linda Unified School Dist. v. Parents (2012) OAH #2012051153).

Calculating the Two-Year Statute of Limitations

20 USC Section 1415(f)(3)(C) states:

parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.

Since the reauthorization, hearing officers have wrestled with the interpretation of the two-year statute of limitations. In 2017, the 9th Circuit Court of Appeals held there is no automatic two-year time bar of claims based on the date of the filing of the case. Avila v. Spokane School Dist. 81 (9th Cir. 2017) 852 F.3d 936. The 9th Circuit refused to uphold a strict occurrence rule which would calculate the two-year statute of limitations from the date the due process complaint was filed. Instead, they upheld the discovery rule, which requires courts limit claims to the two-year period that precedes the date when a parent or agency knew or should have known about the alleged action that forms the basis of the complaint. Avila. This is a question of fact for the hearing officer.

Exceptions to the Two-Year Statute of Limitations

There are only two narrow exceptions to the two-year statute of limitations. 20 USC Section 1415(D)(i) and (ii) provide the following exceptions:

  • specific misrepresentations by the local educational agencythat it had resolved the problem forming the basis of the complaint; or
  • the local educational agency’s withholding of information from the parent that was required under this subchapter to be provided to the parent.

These narrow exceptions require that the LEA’s actions be intentional or flagrant rather than a repetition of an aspect of determining whether a student received a free appropriate public education. Placentia-Yorba Linda Unified School Dist.

Hearing officers have recognized that while an IEP’s implementation is on-going, special education law does not recognize the doctrine of continuing violations as an exemption from the two-year statute of limitations. (Parents v. Hermosa Beach City Elementary School Dist. (2011) OAH# 2011081019).

As you negotiate disputes with your local school district, it is important to keep in mind the two-year statute of limitations. If you don’t, you may lose your right to file a claim for violations under the IDEA as well as other federal and state laws.

If you believe you have a claim against your school district, contact Kristin Springer at (925) 551-1041 to determine whether your claim falls within the statute of limitations.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

 

 

TRANSITION SERVICES- NOT JUST FOR STUDENTS WHO TURN 16

The IDEA specifies that a student is entitled to transition services as he or she prepares to exit the public school system. (20 USC Section 1414(d)(1)(A)(i)(VII)). Many courts have interpreted the IDEA narrowly by concluding the purpose of the statute is to prepare students to enter the workforce. Those courts have excluded transition services at any other time. In 2017, the 9th Circuit Court of Appeals revisited this issue and reversed those decisions.

In reversing prior decisions, the 9th Circuit Court looked at 20 USC 1414(d)(1)(A)(i)(IV) which states that the IEP must include supplementary aids and services which will allow children to… be educated and participate with other children with disabilities and nondisabled children. Services that ease the transition between institutions or programs- whether public or private- serve this purpose. R.E.B. v. State of Hawaii Dept. of Education (9th Cir. 2017) 870 F.3d 1025.

If a student will be transitioning between new academic environments (preschool to school, elementary to middle school, etc.) and you believe they require a transition plan, contact Kristin Springer (925) 551-1041.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

PROCEDURAL SAFEGUARDS: DOCUMENTING FREQUENCY, LOCATION, AND DURATION

All special education and related services, supplementary aids and services, program modifications, and supports for school personnel that are included on a student’s IEPs are required to be documented so that all involved with developing and implementing the IEP have a clear understanding of what will be provided to the student. The IEP is required to specify the anticipated frequency, location, and duration of services. (20 USC Section 1414(d)(1)(A)(i)(VII)).

Everyone on the IEP team, including parents, should know the amounts of services being offered. J.L. v. Mercer Island School District (9th Cir. 2010) 592 F.3d 938. Recently, in contrast to prior rulings, the 9th circuit held that IEPs create a contractual relationship between the school and a student’s representative (parent, guardian, etc.). M.C. v. Antelope Valley Union High School District (9th Cir. 2107) 852 F.3d 840. The IEP is a formal, written offer to provide certain services to a student. When the IEP is written clearly, many factual disputes regarding what services, placement, or additional educational assistance was offered can be avoided. Union School District v. Smith (9th Cir. 1994) 15 F.3d 1519.

An IEP which doesn’t detail the anticipated frequency, location, and duration of the proposed specialized academic instruction may seriously infringe on a parent’s right to participate in the IEP process, especially where the offer improperly delegates the determination of frequency and duration of specialized instruction to teachers outside the IEP. R.E.B. v. State of Hawaii Dept. of Education (9th Cir. 2017) 870 F.3d 1025. The IEP is the blueprint for enforcement and requires a formal, specific offer. R.E.B. citing Union School Dist.

If you are unable to understand what services your child should receive as a part of their IEP, contact Kristin Springer at (925) 551-1041 to discuss having your child’s IEP reviewed.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

 

WHAT DOES IT MEAN THAT A CHILD WITH A DISABILITY MUST ALSO BE IN NEED OF SPECIAL EDUCATION SERVICES?

In order to receive special education services under federal and state law, a student must qualify as a child with a disability. A “child with a disability” is statutorily defined as a child with intellectual disabilities, hearing impairments, speech or language impairments, visual impairments, serious emotional disturbance, orthopedic impairments, autism traumatic brain injury,  other health impairment, or specific learning disability and who, by reason thereof, needs special education and related services. 20 USC Section 1401(c)(A). A student with a qualifying disability is not automatically entitled to an IEP. There must be a demonstration of a need for special education and related services.

In 2017, the 9th Circuit Court of Appeals addressed the issue of whether the student had demonstrated the need for special education services. (L.J. v. Pittsburg Unified School District (9th Cir 2017) 850 F.3d 996. The student met three eligibility criteria and was receiving services from the school. The school provided the services as “general education services.” These services included mental health counseling, a one-to-one aide, and other classroom based accommodations. The court found these services to be special education services. It was determined L.J. met both prongs of the eligibility criteria.

The 9th circuit court discussed the distinction between general and special education services. General education is what is provided to non-disabled children in the classroom. Students in the general education setting do not receive specialized services. In contrast, special education is “specially designed instruction” to meet the unique needs of a child with a disability. (34 C.F.R. Section 300.39(a)(1)).

“Specially designed instruction” means adapting, as appropriate to the needs of an eligible child the content, methodology, or delivery of instruction to:

  • address the unique needs of the child that result from the child’s disability; and
  • ensure access of the child to the general curriculum

( 34 C.F.R. § 300.39(b)(3)).

If your child has a disability (or suspected disability) that interferes with their school performance, they may be eligible for an IEP. You can request the school assess your child by submitting a written request explaining your child’s disability (or suspected disability) and how you believe it impacts their school performance. If the school determines your child has a disability, they will also look at whether your child requires specially designed instruction.

If you have further questions regarding this topic, feel free to contact Kristin Springer at 925-551-1041.  

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

U.S. Department of Education Supports Special Education Students by Publishing a Q&A Supporting the Endrew Case

On March 22, 2017, The Supreme Court of the United States (“SCOTUS”)issued a decision in the case Endrew F. v. Douglas County School District (2017) 580 U.S. __ . Endrew was a case in which SCOTUS held that, under the IDEA, schools must provide students an education that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”*

On December 7, 2017, The U.S. Department of Education released a question-and-answer document to provide insight regarding Endrew. “The Supreme Court sent a strong and unanimous message: all children must be given an opportunity to make real progress in their learning environment—they cannot simply be passed along from year to year without meaningful improvement,” said U.S. Secretary of Education Betsy DeVos. “For too long, too many students offered IEPs were denied that chance. I firmly believe all children, especially those with disabilities, must be provided the support needed to empower them to grow and achieve ambitious goals.”

Here are a couple key excerpts from the Q&A:

18. Is there anything IEP Teams should do differently as a result of the Endrew F. decision?

The Court in Endrew F. held that to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances and expressly rejected the merely more than de minimis, or trivial progress standard. Although the Court did not determine any one test for determining what appropriate progress would look like for every child, IEP Teams must implement policies, procedures, and practices relating to

(1) identifying present levels of academic achievement and functional performance;

(2) the setting of measurable annual goals, including academic and functional goals; and

(3) how a child’s progress toward meeting annual goals will be measured and reported, so that the Endrew F.standard is met for each individual child with a disability.

Separately, IEP Teams and other school personnel should be able to demonstrate that, consistent with the provisions in the child’s IEP, they are providing special education and related services and supplementary aids and services; making program modifications; providing supports for school personnel; and allowing for appropriate accommodations that are reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances and enable the child to have the chance to meet challenging objectives.
19. Is there anything SEAs should do differently as a result of the Endrew F. decision?

SEAs should review policies, procedures, and practices to provide support and appropriate guidance to school districts and IEP Teams to ensure that IEP goals are appropriately ambitious and that all children have the opportunity to meet challenging objectives. States can help ensure that every child with a disability has an IEP that enables the child to be involved in and make progress in the general education curriculum and is appropriately ambitious in light of the child’s circumstances. While many States and school districts are already meeting the standard established in Endrew F., this is an opportunity to work together to ensure that we are holding all children with disabilities to high standards and providing access to challenging academic content and achievement standards.

You can read the entire Q&A here:

https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-endrewcase-12-07-2017.pdf

 

Education Week Q & A Session with Betsy DeVos (Special Education Excerpts)

This morning I was reading an excerpt from a Q & A session with U.S. Secretary of Education Betsy DeVos. Regardless of political affiliation, if you have a child with special needs then you will want to follow what Mrs. DeVos is doing with special education laws and funding.

Special Education

At some point during your tenure, Congress may want to reauthorize the Individuals with Disabilities Education Act. What are your priorities there?

I think Congress needs to seriously look at the commitment they made when passing the act to fund it. I think there has to be a review of the act and all of the mandates put on states. It doesn’t match up with the funding. I think that there’s opportunity to support parents whose kids are using an [individualized education program], or have an IEP to allow them more flexibility in making decisions around their child’s education, and I think that certainly is an area that should be reviewed regularly by Congress.

Do you mean the regulation, or the funding levels?

I think both, I think they all need to be reviewed regularly and considered for where they are and what the realities are.

Would you push for full funding of IDEA? That’s 40 percent of the excess cost of educating a child with disabilities.

I think it’s a fair question to ask Congress about what the funding levels should be. Right now it’s about 15 to 18 percent. And yet, the regulations continue to sort of get piled on here and there. They just continue to sort of make it more and more cumbersome and more and more burdensome for states and for local districts. There has to be, I think, a regular review of that and look at the balance of that, and see what’s really right. But most of all what’s really right for the students we’re trying to serve and for the families and what kind of empowerment do they have in that decision-making.

So you want might want to call for slimming down regulation, but also upping the funding for IDEA. Do I have that about right?

I’m not advocating one way or another right now. I’m just saying it’s clear that Congress has not funded it at the level they committed to when the law was passed. And I think that is something that should be reviewed on a regular basis.

 

You can read the article posted on Education Week’s blog here: http://blogs.edweek.org/edweek/campaign-k-12/2017/09/betsy_devos_transcript_special_education_ESSA_choice.html or http://blogs.edweek.org/edweek/speced/2017/09/devos_special_education_funding.html?cmp=eml-enl-eu-news3&M=58201578&U=2141175