L aw, E thics and G overnance for A ll L eaders,

1. Law, Ethics and Governance for All Leaders, including an Overview of New and Emerging Issues SPECIAL EDUCATION (MODULE 4) 2012-2013 www.legalonenj.org

2. INDIVIDUALS WITH DISABILITIES EDUCATION ACT OVERVIEW • Under IDEA, school districts are required to provide a free appropriate public education (FAPE) to every eligible student. FAPE means special education and related services that2: • are provided to children with disabilities at public expense, under public supervision and direction, and without charge; • meet the standards of the State educational agency (SEA), including the requirements of IDEA; • include preschool (age 3), elementary school, or secondary school education in the State involved; and • are provided in keeping with an individualized education program (IEP) that meets the requirements of IDEA. • States must also educate disabled students in the least restrictive environment (LRE), which means with their peers in a general education classroom, to the maximum extent possible.

3. Referral Evaluation • IEP team decides: • does child have a disability? • does the disability impact the child’s ability to access education? IEP team writes IEP IEP team decides on placement District implements the IEP IEP team reviews the IEP and placement at least annually IEP team does a reevaluation at least every three years, unless parents and school agree not to

4. TIMELINE • Within 20 calendar days of written request for referral, an identification meeting must be held to determine if evaluations are warranted • Evaluations, determination of eligibility, and implementation of IEP, if appropriate, must be completed within 90 calendar days from receipt of the written referral • Exceptions to the 90-day timeline include: • Student moves to a different district during evaluation time frame and parents and District agree to extend deadline • Parents repeatedly fail or refuse to make the student available for the evaluation

5. Least Restrictive Environment (LRE) • A setting where a child with a disability can receive an appropriate education designed to meet his or her educational needs, alongside peers without disabilities to the maximum extent appropriate

6. LRE • A student with a disability is not removed from the age-appropriate general education classroom solely based on needed modifications to the general education curriculum • When determining the restrictiveness of a particular program option, such determinations are based solely on the amount of time a student with disabilities is educatedoutside the general education setting

7. LRE

8. IEP Team • The group of individuals who are responsible for the development, review and revision of the student's individualized education program. • Must include: • The parent • Not less than one general education teacher • Not less than one special education teacher • Case manager • District representative who is qualified to interpret instructional implications of evaluation results • District representative who is qualified to provide or supervise the instruction to student • The student when appropriate9

9. Student (as appropriate) Regular Education Teacher Special Education Teacher (s) School System Rep. A Person Who Can Interpret Evaluation Results The IEP Team Case Manager Others with Knowledge or Special Expertise about the Child Parents

10. Individualized Education Plan • “IEP” means a written plan which sets forth present levels of academic achievement and functional performance, measurable annual goals and short-term objectives, and describes an integrated, sequential program of individually designed instructional activities and related services necessary to achieve the stated goals and objectives. This plan shall establish the rationale for the student's educational placement and serve as the basis for program implementation.

11. Program Options • District not required to provide best or most expensive program. • The District must provide, in the least restrictive environment, a placement meeting all program requirements and related services set forth in IEP, that provides meaningful educational benefit.

12. Related services Includes transportation and such developmental, corrective and supportive services as required to assist a child with a disability to benefit from special education. If a student needs service to benefit from special education, then the district must provide it. Examples include transportation to and from school, including special equipment/assistance as necessary; physical or occupational therapy; counseling for child/parents, etc..

13. Advising Parents of their RightsCopy of the Procedural Safeguards Districts have an affirmative and legal obligation to advise parents of their rights. Provide parents with Procedural Safeguards one time per school year, and upon: initial referral parental request for evaluation receipt of State complaint receipt of first due process in school year a recommended change of placement due parental request 34 C.F.R. 300.504 When in doubt, provide a copy!

14. PRISE • Parental Rights In Special Education • Booklet explaining special education process and the rights of students and parents • Must be given to parents as listed on handout

15. What are Procedural Safeguards? • Not specifically listed in the “Definition” section of the IDEA 20 U.S.C. § 1401 • IDEA Procedural Safeguards are a set of lengthy requirements rather than a strict definition. • 20 U.S.C. § 1415 entitled “Procedural Safeguards” • Approximately 19 pages & 15 paragraphs with multiple subparagraphs and provisions. • There are other safeguards incorporated in IDEA • It is the core of the IDEA.

16. What are Procedural Safeguards? Intended to ensure that PARENTS of students with disabilities are given an OPPORTUNITY to MEANINGFULLY PARTICIPATE in the development of their child’s IEP.

17. Why are Procedural Safeguards important? The core of the Individuals with Disabilities in Education Act (IDEA), is the cooperative process that it establishes between parents and schools. The United States Supreme Court Schaffer v. Weast, 546 U.S. 49 (2005)

18. Parental Participation in Meetings Parents must be afforded an opportunitytomeaningfullyparticipatein meetings dealing with -- (i) The identification, evaluation, and educational placement of the child; and (ii) The provision of FAPE to the child. 34 C.F.R. 300.501(b)(1)

19. Parental Participation in Meetings A meeting does notinclude: • informal or unscheduled conversations involving district personnel. • conversations on issues such as teaching methodology, lesson plans, or coordination of services. • preparatory activities that district personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting. 34 C.F.R. 300.501(b)(1)

20. Parental Participation in Meetings Parents must be afforded an opportunityto meaningfullyparticipate

21. Consent for Services • Informed parental consent must be obtained before services begin. • If parents refuses to consent for services, the District will not be considered to have failed to provide FAPE to the child. • Related services are only provided to students who receive special education services.

22. Revoked Consent Although the IDEA “…does not explicitly state that parents have the right to revoke consent for special education and related services, the parent's right to revoke consent for special education and related services at any time is consistent with the [IDEA’s] emphasis on the role of parents in protecting their child's rights and the Department's goal of enhancing parent involvement and choice in their child's education. “ U.S. Department of Education 73 Fed. Reg. 73,015 (2008)

23. Revoked Consent Revoked Consent • Consent by its very definition is voluntary. • Parent(s) may revoke consent at anytime. • Must be in writing. • Revocation is prospective only - i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked.

24. Revoked Consent Once a parent revokes consent for services: What MUST a district do? • Provide prior written notice before ceasing special education and related services. What CAN’T a district do? • After providing prior written notice and reasonable time to consider the change , may not continue to provide special education and related services. • In NJ a “reasonable time” is 15 days after written notice. • Cannot file for mediation or due process in order to obtain agreement or a ruling that the services be provided to the child;

25. Revoked Consent A District: • Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with further special education and related services • Is not required to convene an IEP Team meeting or develop an IEP for the child for further provision of special education and related services. • District is not required to amend the child's education records to remove any references to the child's receipt of special education and related services because of the revocation of consent.

26. Revoked Consent • Child is considered a general education student and may be placed in a regular classroom. • Child is considered a regular education student, even with respect to discipline procedures. • Although a child is considered regular education student, a parent retains the right to request an initial evaluation to determine eligibility and start the process all over.

27. Unilateral Placements • The law enables parents to recover tuition for private school when they unilaterally remove child from public school and place him or her in private facility, provided that a court or hearing officer finds that the district denied the student FAPE and the private placement is appropriate for the student • IDEA enables courts to deny or reduce reimbursement for tuition when the parents act unreasonably, such as: • failing to inform the IEP team that they are rejecting the public school placement; • not giving 10 day advanced written notice before removing the child from public school; • refusing to make the child available for an evaluation

28. DISPUTES • When parents disagree with the determination of the district’s IEP team, they have the right to pursue the matter through administrative and legal proceedings.

29. Stay-Put • During Due process and other legal hearings to resolve disputes between the District and parents, the student remains in the last agreed upon educational setting pending the Court’s decision, unless the parent and District agree otherwise.

30. MEDIATIONS AND RESOLUTION SESSIONS • What is the difference? • Statistics show that the majority of cases settle prior to a full due process hearing. • On average, only about 10-15% of cases proceed to a full due process hearing • Most of these cases are settled during mediation or a resolution conference with the administrative law judge

31. Complaint for Investigation • A formal written complaint may be filed with the Department of Education alleging procedural violations • A report will be issued within 60 days of receipt of the request. If a violation is found, a corrective action plan will be included

32. Due Process Timelines • Petition must be filed within 2 years of alleged action that led to the filing of Due Process • 30 days for resolution or mediation • Hearing completed and written decision issued within 45 days after 30-dayresolution and/or mediation period.

33. Due Process Burden of Proof • Unlike any other legal case….. • In New Jersey, the District has the burden of proof in a due process hearing….even though the parents are the ones who filed for relief.

34. Appealing Hearing Decisions New Jersey Law: • A party has 90 days after administrative decision to appeal to either a New Jersey Superior Court or the U.S. District Court, District of New Jersey.

35. Attorney's Fees Districts may be ordered to pay a parent's attorney's fees where parents have prevailed in a dispute with the district. Can District’s recover attorney’s fees?

36. Independent Evaluations OLD: If the parent requested an evaluation in area in which the district did not evaluate, the District could choose to evaluate first. See N.J.A.C. 6A:14-2.5(c ) DOE May 14, 2012 guidance: No longer!!! • Districts have to file for due process even if they have not evaluated before. • USDOE determined that this provision violated Federal Law limiting parental rights to an independent evaluation. • When receiving a request for independent evaluation, a district must provide the evaluation at no cost to the parent, unless the district files for due process.

37. Student Discipline

38. How is a special education student disciplined different than a general education student?

39. Guidelines for Disciplining Special Education Students for Violations of HIB Policies Unique discipline procedures and rules apply to students classified as eligible for special education and related services. Immediately contact special education department if classified student is involved.

40. IDEA Discipline Protections Functional Behavior Assessment Behavior Intervention Plan Manifestation Determination Review Continuation of FAPE

41. “Change in Placement” Defined • A removal for more than 10 consecutive schools days; or • A series of removals that constitute a pattern because: • Total number of removals are more than 10 school days; • Length and proximity of the removals to one another.

42. Services During Removals • If change in placement: • The District must give parent notice that removal is a change in placement, including procedural safeguards • The child’s IEP Team determines services • The IEP Team determines the interim alternative educational setting

43. MANIFESTATION HEARINGS Must be conducted if suspension is for more than 10 days. IEP Team may determine that the behavior was not a manifestation of the disability if: The disability did not impair the ability of the child to understand the impact and consequences of the behavior; The disability did not impair the student’s ability to control the behavior

44. IF BEHAVIOR IS MANISFESTATION OF DISABILITY THEN: The IEP Team shall: • Conduct a functional behavior assessment & implement a behavioral plan, unless that has already been done • If a behavioral plan has been developed, review & modify it as necessary • The student is returned to the current placement no later than the 11th day following removal, unless the parent and team agree otherwise

45. SERIOUS EXCEPTIONS • No manifestation determination is required if the student: • – Carried or possessed a gun or dangerous weapon • – Knowingly possessed or used illegal drugs • – Sold or solicited a controlled substance • – Inflicted serious bodily injury on another at school, on school premises, or at school function • 45 Day Interim Placement

46. Section 504Rehabilitation Act • “No otherwise qualified individual with a disability …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…”

47. Student with Disability • Student must have a physical or mental impairment that • –Substantially limits • –One or more major life activities

48. Major Life Activities • •Functions of the immune system • •Neurological functions • •Endocrine functions • •Circulatory functions • •Learning • •Thinking • •Concentrating • •Reading • •Writing • •Communicating • •Applying fine motor coordination

49. Possible Impairments Include • •Asthma • •Diabetes • •Epilepsy • •Cystic Fibrosis • •Traumatic Brain Injury • •Cancer • •ADD/ADHD • •PTSD • •Sickle Cell Anemia • •Cerebral Palsy

50. Remember….. • Free Appropriate Public Education • Least Restrictive Environment • Parent is part of the IEP Team and the cornerstone of the IDEA • Always stay in contact with your Department of Special Services!