NAMI 2005 Annual Convention

1. NAMI 2005 Annual Convention Let’s Talk: Advanced Discussion Forum for NAMI Leaders -- IDEA and Other Policy Considerations for Families Darcy E. Gruttadaro, J.D. Director, NAMI Child & Adolescent Action Center NAMI Convention ~ Austin, TX ~ 2005

2. IDEA Rewritten and Re-authorized December 3, 2004 -- President Bush signed the Individuals with Disabilities Education Improvement Act (IDEA), rewriting and re-authorizing provisions of our nation’s special education law. The provisions of the new law take effect on July 1, 2005. U.S. Dept. of Ed. released regulations on June 10th available at www.ed.gov. NAMI Convention ~ Austin, TX ~ 2005

3. IDEA and NCLB • In re-authorizing and rewriting provisions in IDEA, Congress attempted to align IDEA with No Child Left Behind (NCLB). • NCLB requires states to implement statewide accountability systems with a focus on annual testing for reading and math. States must report data on academic achievement for students in sub-groups, including those with disabilities. NAMI Convention ~ Austin, TX ~ 2005

4. An Update on Important Changes to the IDEA Law The reauthorization process was contentious. The U.S. House introduced a bill to reauthorize IDEA that included many gravely concerning provisions. The U.S. Senate introduced a more balanced bill that sought to maintain provisions currently in the law. Congress reached a compromise in the bill that President Bush signed into law, that eliminates many protections for students with disabilities. NAMI Convention ~ Austin, TX ~ 2005

5. The Individualized Education Program (IEP) The IEP is the blueprint for the education and related services that schools must provide to students with disabilities. The rewritten law eliminates the requirement that the IEP include benchmarks and short-term objectives for students, except for the 1% of students with serious cognitive disabilities (NCLB). Congress removed the benchmarks and short-term objectives because schools complained about the administrative burden. NAMI Convention ~ Austin, TX ~ 2005

6. The IEP ~ Benchmarks and Short-term Objectives Before the change in the law, the IEP team was required to include short-term objectives for meeting measurable annual IEP goals. Without short term objectives, parents have no way of measuring whether their child is making progress in achieving their annual goals. NAMI Convention ~ Austin, TX ~ 2005

7. The IEP ~ Benchmarks and Short-term Objectives Parents should continue to request that the IEP include short term objectives, even if they are not required by the law. NAMI will ask for this to be included in the final IDEA regulations. IDEA 2004 still requires a description of how progress toward meeting annual goals will be measured. Short term objectives measure progress and allow parents to be informed participants in their child’s education, so should be in the IEP. NAMI Convention ~ Austin, TX ~ 2005

8. The IEP In measuring progress, the law now requires that the IEP include the following: • a statement of the child’s present level of academic achievement and functional performance; • a statement of measurable annual goals, including academic and functional goals ... NAMI Convention ~ Austin, TX ~ 2005

9. The IEP ... • a description of how the child’s progress toward meeting the annual goals will be measured and a description of when periodic progress reports will be provided to parents. • Reporting to parents may include quarterly reports or other periodic reports issued with quarterly report cards. NAMI Convention ~ Austin, TX ~ 2005

10. The IEP ~ Transition Services The new law provides that beginning not later than the 1st IEP in effect when the child turns 16 and updated annually, the IEP must include appropriate planning and goals related to transition. This change in the law seems to eliminate the requirement that transition services begin as early as age 14, HOWEVER ... NAMI Convention ~ Austin, TX ~ 2005

11. The IEP ~ Transition Services … the proposed regulations provide that “beginning with the first IEP in effect after the child turns age 16 or younger if determined appropriate …” Although the proposed regulations are subject to final approval, this is a positive development that allows parents to inform schools that their child requires transition services before age 16. Also, parents should request that the IEP include interagency responsibilities and linkages. NAMI Convention ~ Austin, TX ~ 2005

12. The IEP ~ Transition Services The IEP must include appropriate measurable post-secondary goals related to: • education; • training; • employment; • independent living skills; and • courses of study needed to assist the student in reaching post-secondary goals. NAMI Convention ~ Austin, TX ~ 2005

13. The IEP Team The following individuals participate in the IEP meeting: • Parent of the student; • 1 or more regular education teachers; • 1 or more special education teachers; • Representative from the LEA; • person to interpret student’s evaluation; • others with special knowledge about the student; • and when appropriate, the student. NAMI Convention ~ Austin, TX ~ 2005

14. The IEP Team and Meetings Under IDEA 2004, IEP team members may be excused from the IEP meeting if their area is not being discussed provided parent and LEA agree to the team member not attending the meeting. NAMI Convention ~ Austin, TX ~ 2005

15. The IEP Team and Meetings The concern is that parents may be led to believe that they do not have any choice but to consent to the absence of a key IEP team member (a general education teacher) who is critical to the meeting and the development of the IEP. Parents need to understand that they have the right to have every member of the team at the IEP meeting rather than receiving their input in writing. There is value in having the entire IEP team present. NAMI Convention ~ Austin, TX ~ 2005

16. Three-Year IEP Pilot Program IDEA 2004 allows up to 15 states to apply for approval from the U.S. Dept. of Ed. for a pilot program allowing schools within those states to develop multi-year IEPs, for up to 3 years. Parents must provide informed consent for the multi-year IEP and it must remain an option for parents. NAMI Convention ~ Austin, TX ~ 2005

17. Three-Year IEP Pilot Program The U.S. Dept. of Ed. must submit a report to Congress about the effectiveness of the program and recommendations for broader implementation of the multi-year IEP program. Parents must understand that this is optional and they must provide consent. Also, parents should provide feed back on the pilot program. NAMI Convention ~ Austin, TX ~ 2005

18. Discipline • Under IDEA 2004, the “stay put” protections remain, with a minor exception. • This provision provides that, unless the school and parents agree otherwise, a student with a disability remains in his or her current educational placement during the disciplinary review process. NAMI Convention ~ Austin, TX ~ 2005

19. Discipline • New provisions in IDEA 2004 provide schools with the authority, on a case-by-case basis, to remove a child with a disability to an interim setting or to suspend a student for a violation of a code of student conduct (to the extent those actions are taken against students without disabilities). • For not more than 10 school days. NAMI Convention ~ Austin, TX ~ 2005

20. Discipline • Under IDEA 2004, a student with a disability must continue to receive educational services when the child is removed from his/her current placement to enable the child to continue with the general curriculum and to progress toward meeting the goals included in the student’s IEP. NAMI Convention ~ Austin, TX ~ 2005

21. Discipline ~ Manifestation Determination • The manifestation determination requirement was added to IDEA in the 1997 reauthorization to codify the concept that when behavior, even inappropriate behavior, is caused by a student’s disability, the school’s response should be different than behavior that is not related to a disability. NAMI Convention ~ Austin, TX ~ 2005

22. Discipline ~ The Manifestation Determination Here is how it works: • within 10 days of a decision to change a student’s placement (for more than 10 school days) because of a violation of the code of school conduct, members of the IEP team must review info. related to the incident to determine if the conduct had a direct and substantial relationship to the disability or was a direct result of the school’s failure to implement the IEP. NAMI Convention ~ Austin, TX ~ 2005

23. Discipline ~ The Manifestation Determination • The MD in IDEA 2004 has changed because previously the law required the IEP team to determine that the behavior of the child was NOT a manifestation of the child’s disability and listed factors that needed to be considered. • Whereas, under IDEA 2004, the law includes the criteria for determining when the behavior IS a manifestation of the disability. This is being interpreted by some as shifting the MD burden of proof to the parents. NAMI Convention ~ Austin, TX ~ 2005

24. Discipline ~ The Manifestation Determination • NAMI will call on the Department of Education to make clear in the final regulations that during the MD review, the school district has the affirmative responsibility to show that the child’s conduct was not a manifestation of the child’s disability. • Also, NAMI will ask for clarifying language so that a MD review includes consideration of whether the student’s IEP was appropriate (previously part of the law), not just looking at whether it was implemented. NAMI Convention ~ Austin, TX ~ 2005

25. Discipline ~ Manifestation Determination • Under IDEA 2004, if the conduct was a manifestation of the child’s disability, then the child is returned to their placement (unless parent and school agree otherwise and except in cases involving drugs, weapons and serious bodily injury). • Also, the IEP team must conduct a functional behavioral assessment (FBA) and implement a behavior intervention plan (BIP) for the student. • If a BIP exists, it must be reviewed and modified. NAMI Convention ~ Austin, TX ~ 2005

26. Discipline ~ Advice for Parents • IDEA 2004 makes it easier for schools to remove children from school and appears to place the burden on parents to prove the connection between behavior and the student’s disability. • Therefore, in developing the IEP, parents should pay special attention to the behavioral needs of their child and spell out the supports and services the child needs to minimize behaviors that could result in discipline and removal from school. NAMI Convention ~ Austin, TX ~ 2005

27. Discipline ~ A Change to the “Stay Put” Provision • Under IDEA 2004, when an appeal to a decision regarding placement or the MD review has been requested by either the parent or the school, the child remains in the interim alternative educational setting until a decision is made. • This changes the “stay put” protection pending the outcome of the appeal. NAMI Convention ~ Austin, TX ~ 2005

28. Discipline and NCLB Under NCLB, schools must include data on academic achievement for students with disabilities to show that they are meeting AYP. However, schools do not have to count students who are transferred to alternative settings and are not in the same school for the full academic year. This may be an incentive for disciplinary action against students with disabilities to remove those students so that they will not be counted. NAMI Convention ~ Austin, TX ~ 2005

29. Discipline ~ Removal for Special Circumstances IDEA allows schools to remove students to an interim alternative educational setting for up to 45 school days for offenses, even if act was a manifestation of the disability, involving: • weapons; • drugs; • student inflicts serious bodily injury upon another at school (added in IDEA 2004). NAMI Convention ~ Austin, TX ~ 2005

30. Discipline ~ Removal for Special Circumstances IDEA 2004 narrowly defines “serious bodily injury” as bodily injury involving -- • a substantial risk of death; • extreme physical pain; • protracted and obvious disfigurement; or • impairment of the function of a bodily member, organ, or mental faculty. Schools cannot remove a student for threats or school yard fights. NAMI Convention ~ Austin, TX ~ 2005

31. Due Process ~ Statute of Limitations IDEA 2004 imposes a new 2-year statute of limitations. Parents now have 2 years within which to exercise their due process rights after they knew or should have known that an IDEA violation occurred or lose their claim. Not clear how “should have known” will be interpreted. NAMI Convention ~ Austin, TX ~ 2005

32. Due Process Notice IDEA 2004 added a new provision that provides that the party requesting the due process hearing (most often the parent) will not be allowed to raise issues at the hearing that were not included in the DP notice. Parents must include all claims in the DP hearing notice or will lose their right to raise them. NAMI Convention ~ Austin, TX ~ 2005

33. Mediation IDEA 2004 strengthens the mediation provisions to help minimize IDEA lawsuits. Parents and schools may proceed directly to mediation to resolve disputes rather than first filing a DP hearing request. When agreement is reached through mediation, then a legally binding written agreement is signed. NAMI Convention ~ Austin, TX ~ 2005

34. Resolution Sessions IDEA 2004 adds a new provision that provides that if a parent requests a due process hearing, the school must convene a meeting with the parents and the IEP team within 15 days of receiving the complaint. This was added to give schools a chance to resolve the problem early in the process. NAMI Convention ~ Austin, TX ~ 2005

35. Resolution Sessions • The school may not have a lawyer present unless the parents have one there; • The RS may be waived by both parties; • If parents are not happy with the school’s suggestion for resolution, then they proceed to a DP hearing; • If agreement is reached, then they sign a legally binding agreement with a 3-day cooling off period. NAMI Convention ~ Austin, TX ~ 2005

36. Wise Words ... Never doubt that a small, group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has. Margaret Mead NAMI Convention ~ Austin, TX ~ 2005

37. Contact Information ... Darcy Gruttadaro, J.D. Director, NAMI Child & Adolescent Action Center ph: 703-516-7965 email: darcy@nami.org visit NAMI at www.nami.org NAMI Convention ~ Austin, TX ~ 2005