Uncategorized – Page 2 – SPECIAL EDUCATION LEGAL JOURNEY

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

9TH CIRCUIT CASE RULES GIVES STRONG ADVOCACY TOOLS TO FAMILIES

On September 13, 2017, the 9th Circuit Court of Appeals issued an opinion in the case R.E.B. v. State of Hawaii Dept. of Education that will provide strong advocacy tools to families. J.B. was a Kindergarten student transitioning to public kindergarten from an ABA-based private school. The court held that the Hawaii Department of Education violated the IDEA when it failed to:

include transition services from a private, ABA-based preschool to public school;
specify ABA as a teaching method;
specify the LRE for services during the school breaks as well as school year; and
provide more specificity of mainstreaming services.

Transition Services to Ease Transition between Institutions or Programs: The court extended transition services, as a “supplementary aid and services,” beyond students exiting the public school system. The court held that transitions services must be included in the IEP when they become necessary for a disabled child to be educated and participate in new academic environments.

IEP Must Specify LRE During the Regular and Extended School Year: The court looked at two things. First, does the IEP include an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class. The IEP cannot leave the details of mainstreaming up to the general and special education teacher outside the IEP process. Second, does the IEP specify the anticipated frequency, location, and duration of the services and modifications. The language must allow the parent to use the IEP as a blueprint for enforcement. In order to avoid challenges, the school district must make a formal, specific offer.

Methodology May be Necessary in an IEP: The court rejected argument that the IEP did not need to address instructional methodology, stating “when a particular methodology plays a critical role in the student’s educational plan, it must be specified in the IEP rather than left up to the individual teachers’ discretion.” The court clarified that inclusion of a specific methodology does not preclude the school from using other methodologies. It acknowledged that writing it in would ensure the methodology would be used consistently.

Parents, advocates, and attorneys alike will be able to use this ruling to advocate during IEP meetings. I applaud the 9th circuit for clarifying these principles.

If you have any legal questions regarding if or how this case applies to your particular situation, feel free to contact Kristin 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/)

PRIVATE SCHOOL STUDENTS, INCLUDING HOMESCHOOL (FILED UNDER A PSA) STUDENTS- WHAT ARE THEIR RIGHTS?

In California, state law requires that all children age six through eighteen attend a public day school. Students enrolled in a private school that files the affidavit are exempt from compulsory education. Students who are homeschooled are either public school students using a public charter school or private school students who are homeschooled under a private school affidavit (“PSA”). Therefore, in California, you are either a public school student or private school student. A private school student’s rights to services under the IDEA are different than the rights of a public school student. However, they do have some rights designed to ensure equitable participation of parentally placed private school children with disabilities.

Child Find

The requirements of Child Find (20 USC Section 1412( a)(3)) are the same for private and public school. Jurisdiction for the student in the private school falls on the local educational agency (“LEA”) where the private school is located. So, if your child attends a private school in San Ramon, a parent who wishes to request an assessment would request an assessment from the San Ramon School District. If the student is homeschooled under a PSA, the address of the school would determine the agency responsible for Child Find.

The LEA, under Child Find, is required to identify, locate, and evaluate all children with disabilities who are in need of special education and related services. The LEA has 60 days of receipt of parental consent to conduct an initial evaluation.

Parental Consent

The LEA must obtain parental consent before they are able to conduct an evaluation or provide services to the student. If a parent withholds consent, the LEA may not seek consent through due process.

Consultation

The LEA is required to consult with a representative of the private school and parents of parentally placed private school students with disabilities during the design and development of special education and related services for the student. The LEA must give meaningful consideration to the of the views of the private school representative and parents.

Equitable Services

If your student qualifies for special education, you are entitled to equitable services. Equitable services is determined by the amount of funding provided to the LEA. Because funding is limited, your student might receive fewer free services than if he or she attended public school.

Services Plan

Each student who has been designated to receive special education and/or related services must have a services plan. The services plan describes the specific special education and/or related services that the LEA will provide to the student. The provision of equitable services may be made through employees of a public agency or through a third party contract.

The LEA must ensure that the process used to develop the services plan is consistent with the process used to develop and review an IEP for a public school student. Measurable goals shall be written for services offered under the services plan.

Complaint Procedures

A private school representative has the right to file a complaint to with the State Educational Agency (“SEA”) if the LEA did not engage in a timely or meaningful consultation.

Parents only have the right to file for due process for Child Find violations. Additional complaints may be made with the SEA.

Parents May Choose to Enroll in Public School

Parents of a privately-placed student with a disability may choose to enroll their student in their local public school. If an eligible student becomes a public school student they will have all the rights under the IDEA.

If you have further questions about this issue, do not hesitate to contact Kristin Springer at (925) 551-1041.

AN APPROPRIATE IEP TAILORED TO THE NEEDS OF THE CHILD DEPENDS ON THE QUALITY OF THE INITIAL EVALUATION

Evaluations are critical to the development of an appropriate IEP. School districts have an obligation to identify, locate, and evaluate all children with disabilities who may be eligible for special education. A child may be referred for assessment by a parent, guardian, teacher, or other school personnel. A school who decides not to evaluate a student must give notice (called “prior written notice”) to the parents in 15 days.

The threshold for assessment is relatively low. The duty to assess doesn’t rest on whether the student will actually qualify for services, rather whether the student has a suspected disability. A disability is suspected when the district is on notice that the child has displayed symptoms of that disability or the child may have a particular disorder. (Timothy O. v. Paso Robles USD (9 Cir. 2016) 822 F.3d 1105) The court emphasized the importance of early identification of disabilities.

The courts have established extensive obligations to ensure a high quality IEP. The initial evaluation must be designed to gather relevant functional, developmental, and academic information about the child. The school must evaluate a student in all areas of suspected disability. The school cannot focus on one area, such as reading, and ignore other areas, such as behavior or organization. The school must use a variety of tools to gather this information. An informal observation does not constitute a formal assessment. The tools used must vary, be technically sound, and administered by trained and knowledgeable professionals.

A district’s failure to assess a student in all areas of suspected disability deprives the IEP team of critical information. As such, the failure to properly assess a student renders it difficult to formulate an IEP based on the student’s unique needs. This inability to design an IEP to meet the student’s unique needs constitutes a denial of a FAPE.

California Department of Education- Dyslexia Guidelines (8/14/17)

Today, the CDE published the Dyslexia Guidelines. They can be found here:

Click to access cadyslexiaguidelines.pdf

These guidelines are not binding on school districts. However, the guidelines can be used with current statutory and case law to assist in advocating for students with dyslexia.

If you have any questions about the Guidelines I’d be happy to discuss them with you.

“THE GOALS MAY DIFFER, BUT EVERY CHILD SHOULD HAVE THE CHANCE TO MEET CHALLENGING OBJECTIVES.” – SUPREME COURT OF THE UNITED STATES

On March 22, 2017, the Supreme Court of the United States issued a decision in Endrew F. v. Douglas Country School District 580 US ____ (Mar. 22, 1997). This is a good time for parents to review their child’s IEP and determine if it provides a free and appropriate education to their child in light of the Supreme Court’s findings in Endrew F. The Supreme Court opined that every child should have a chance to meet challenging objectives. The process used to establish an IEP and implementation of a child’s IEP are important to protecting this right.

Establishment of the IEP

The Supreme Court opined that an IEP must be constructed after careful consideration of the:

Child’s present levels of achievement;
Disability; and
Potential for growth.

The collaboration between the school and parents on these issues is key to an appropriate IEP. The present levels of achievement and disability are often subject to discussion because they are included on the IEP form. An area that may be overlooked is the potential for growth. There isn’t an area specifically designated for this topic.

The IEP should be reasonably calculated to enable the child to receive educational benefits. For students integrated in the regular classroom, this requires the IEP to be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. For students not fully integrated, the IEP must allow the child to pursue academic and functional advancement. In both circumstances, The IEP must take into consideration the unique circumstances of the child.

The courts give deference to the school district based on their expertise. The Supreme Court opined that, given the expertise, schools are required to air their opinions and be prepared to offer a cogent and responsive explanation of their decisions. Parents are entitled to ask seek information and documentation to understand the school’s opinions.

Implementation of the IEP

Parents and school officials should monitor progress during the implementation of the IEP. Parents are not at the school site and unable to monitor progress in person. Therefore, it is important for parents to request school work, including anything generated during specialized academic instruction.

Parents should not accept trivial progress. Parents should expect their child will make progress in light of his or her unique needs. Trivial progress is no longer acceptable.

If you believe your child’s IEP does not contain challenging objectives or your child is not making appropriate progress in light of his or her circumstances, it is important to seek the advice of legal counsel who can help you analyze your situation.

(You can view my initial impressions of the Endrew F. case here: https://specialedlegaljourney.com/2017/03/24/new-ruling-a-school-must-offer-an-iep-reasonably-calculated-to-enable-a-child-to-make-progress-appropriate-in-light-of-the-childs-circumstances/)

PARENTAL PARTICIPATION IN IEP PROCESS IS A CRITICAL FEATURE UNDER IDEA- DURING IEP MEETINGS AND IMPLEMENTATION OF SERVICES

One of the complaints I often hear from parents is that the school is not allowing them to be a part of the decision-making process. They are allowed to speak at the IEP meetings only to have their opinions and ideas shot down by the school district. At the end of the IEP meeting they are presented an offer of FAPE in a take it or leave it manner. Lawmakers designed the IEP process to be collaborative and, as such, nobody should leave an IEP meeting feeling like they were not an important part of the process.

According to the IDEA, the IEP team shall include parents of the child with a disability. (20 USC Section 1414(1)(B)) Parents are listed first in order as IEP team members. Often times, parents are not represented by an advocate or attorney at the IEP meeting. Therefore, lawmakers devoted an entire section of the IDEA to procedural safeguards. (20 USC 1415) Some of those safeguards are:

Notice of meeting (time, purpose, location, and who will be in attendance);
Right to bring others with knowledge/expertise regarding the child;
Meeting scheduled at a mutually agreed upon time and place;
Alternative means of participation;
Right to a copy of the evaluation reports and any other documents considered in making decisions by the IEP team;
Right to an Independent Educational Evaluation (if parents disagree with a district’s evaluation); and
Right to due process.

When formulating an IEP, a school district “must comply both procedurally and substantively with the IDEA,” M.L. v. Fed. Way Sch. Dist. 394 F.3d 634,664 (9^th Cir. 2005) (citing Rowley v. Hendrick Hudson Sch. Dist. 458 U.S. 176 (1982), so that the process will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians,” Endrew F. v. Douglas City Sch. Dist. 580 U.S. (March 22, 2017). (M.C. v. Antelope Valley Union High Sch. Dist. No. 14-56344 (9^th Cir., March 27, 2017)) The courts recognize the parents have a unique perspective on their child and observe their child in a multitude of situations.

Parental participation shall be meaningful. Meaningful participation is more than attendance at the IEP meeting. (Amanda J. v. Clark County Sch. Dist. 260 F.3d 1106 (9^th Cir. 2001) District representatives are allowed to meet before an IEP meeting to develop a proposal or response that will be discussed at a later meeting. (34 C.F.R. 300.501(b)(3)) School districts should never say “we don’t do that here” or “we won’t consider that.” It prevents the parties from collaborating and builds mistrust.

The court frowns upon school districts lack of transparency during the IEP process, as well as during the implementation of the IEP. Congress is just as concerned with parental participation in the enforcement of the IEP as it is in the formation. (Rowley 458 at 205) Parents must be able to monitor and enforce the services that their child is to receive. When a parent is unaware of the services offered to the student—and, therefore, can’t monitor how these services are provided—a FAPE has been denied, whether or not the parent had ample opportunity to participate in the formulation of the IEP. (M.C. at 14)

If you have a question about whether your legal rights to participate in the IEP process has been less than meaningful, give me a call at 925-551-1041. Each case is unique to a specific set of facts and must be analyzed separately.

MEDIATION IN SPECIAL EDUCATION CASES

In California, approximately 96% of due process complaints filed with the Office of Administrative Hearings are resolved without a hearing….

Parents and school districts often experience positive relationships. There are times, however, where differing perceptions of what the student needs and can accomplish arise and create a barrier to reaching an agreement. Parents and school districts can disagree about which educational program, methodology, or service is necessary.

In 2004, when Congress amended the IDEA, mediation was added as a procedural safeguard to resolve disputes between parents and school districts. 20 U.S.C. Section 1415(e) requires school districts establish procedures to resolve disputes through a mediation process, at minimum when a hearing is requested. Mediation is a voluntary process where a third party (mediator) assists parties who have come together to resolve a dispute. In California, parties can request mediation with or without filing for a due process hearing.

The reauthorized IDEA also added a requirement that the local educational agency shall convene a meeting within 15 days of receiving notice of a parents’ request for a due process hearing. This meeting is called a resolution session. The resolution session is guided by law in that it shall:

Include a representative of the agency who has decision-making authority;
Only includes attorneys if the parents bring an attorney;
Allow parents to discuss their complaint and the facts that form the basis of their complaint; and
The school district must be provided an opportunity to resolve the complaint.

The resolution session can only be cancelled through an agreement by the parents and the school district. The parties may waive the resolution session to use mediation instead.

In my experience, schools typically want to waive the resolution session and participate in mediation. I like the idea of a resolution session but have found that it often doesn’t result in a resolution of the claim. By the time a complaint has reached a level to require due process, the relationship has been broken and a third party facilitator is helpful to bring the parties back together.

When considering mediation for a special education claim, it is important to remember the benefits of mediation. Mediation is less expensive than due process. Mediation requires the parties to make compromises and often starts the process of repairing the relationship. Mediation is confidential and allows creative solutions.

Parents who wish to bring an attorney to mediation need to understand that attorneys are not permitted to attend a “Mediation Only” request with the Office of Administrative Hearings. Therefore, it may be necessary to file a Request for Mediation and Due Process Hearing.

As a trained mediator, I understand the value of an informal resolution of special education claims. Children are best served when the parties can come to a resolution to provide an appropriate education without the necessity of holding a due process hearing.

HELP THE SCHOOL YEAR GET OFF TO A GREAT START

The end of summer and beginning of a new school year can be a stressful time for parents with a child who has an IEP or 504 Plan. There are things parents can do to help get the new school year off to a great start.

Establish a Good Relationship with Your Child’s Teacher.

Your child’s teacher or teachers have a lot of responsibilities leading up to the new school year. Don’t assume that they have the time to review your child’s IEP or 504 Plan. That doesn’t mean that you approach your child’s new teacher or teachers in a hostile manner and put them on the defensive. Many teachers appreciate a parent who provides a summary of strengths and struggles of an incoming child with a disability. Provide your child’s teacher with a copy of their IEP or 504 Plan. I always recommend adding information regarding strategies that have worked for other teachers. Be sure to close out the letter thanking them for their time and letting them know that you are there to support your student and the teacher.

Review Your Child’s Most Recent IEP.

It is important to review your child’s IEP to make sure you understand your child’s current goals and what the school agreed to provide. If you have questions regarding the clarity of any provisions of the IEP, write to your child’s case manager or the appropriate service provide and ask for clarification. If informal attempts to clarify provisions of your child’s IEP are unsuccessful, call an IEP meeting.

Take Time to Organize Your Paperwork.

I recommend parents start a new folder or binder every year. The folder or binder should be used to keep track of relevant IEPs, communication, progress reports, assessments, and meeting notes. I also recommend parents keep copies of work samples that show your child’s strengths and weaknesses. These documents will be helpful during future IEP meetings and in the event disagreements lead to due process.

Determine if Any New Issues Have Arisen.

The new school year is a good time to think about whether new academic, social, organization, or behavior concerns have arisen. Inform the IEP team in writing regarding any new concerns. Don’t wait for your child to struggle, or worse fail.

If you believe your child’s IEP does not provide FAPE or your child’s 504 Plan is no longer sufficient, consult with an attorney on how to get things on the right track.

DURING TIMES OF DISAGREEMENT, CAN A DISTRICT SIT BACK AND FORCE THE PARENTS TO FILE FOR DUE PROCESS?

In most instances where a child is already receiving special education services, the simple answer is no. The Individuals with Disabilities Act (“IDEA”) provides procedural protections to parents and local educational agencies (your school district). One of those procedural protections is the allowance of an impartial due process hearing with respect to the provision of a free and appropriate public education to a student (“FAPE”). Parents and the local educational agency may file for due process to resolve disputes related to the identification, evaluation, or educational placement of a student.

School districts have a mandatory responsibility to file for due process when a disagreement arises with parents of a student receiving special education services. The school district is required to continue to provide the services set out in the student’s IEP while they resolve the remaining disputes. Failure to request due process for a protracted period of time is a serious procedural violation of state law. Porter v. Manhattan Beach Unified School Dist. (C.D.Cal., Dec. 21 2004 (Case No. CV 00-8402 GAF)) 105 LRP 40577.

The school’s responsibility to file for due process also extends to the obligation to have an IEP in place at the beginning of the year. (34 C.F.R. 300.323(a), see also M.M. v. School Dist. Of Greenville County (4^th Cir., 2002) 37 IDELR 183) School districts “cannot excuse their failure to satisfy the IDEA’s procedural requirements by blaming the parents.

Something to consider…. The party who files the administrative complaint has the burden of persuasion by a preponderance of the evidence. (Schaffer v. Weast (2005) 546 U.S. 49) It isn’t always advantageous to file due process when the school district has the obligation to file. Please also understand that a procedural violation alone doesn’t entitle a parent to seek relief from the school district. If you would like more information regarding this issue, contact me at (925) 551-1041 to discuss the facts of your particular case.