Special Education Update July 2014

1. Special Education UpdateJuly 2014

2. Emergency Safety Intervention Changes: Going from 4 times a year to 2 times a year (No dates scheduled yet) Aggregate Data only vs individual student level on the submission: total number of minutes, students and incidents There will be memo on clarification in reporting guidance regarding reported in ANY learning environment.

3. ESI Continued You will continue to fill out the form, keep a copy in the building, send a copy to parents and Dr. Atha. This data will be critical if we are audited by OSEP or OCR.

4. LEA Responsibilities • As the LEA, you need to attend to the entire meeting. • NO electronic device checking throughout the meeting-the parent and student deserve your undivided attention to the discussion. • Keep the conversation on track. • Stop side bar conversations. • Check the signature page to assure all have signed and parents have initialed regarding Parental Safeguards/Rights. • The LEA has the authority to make decisions regarding use of funds, curriculum, accommodations, etc.

5. Legal Update • Kansas Cases • The child’s guardians (aunt and uncle) (along with a private advocate) filed five complaints, including 28 issues, during the spring semester of 2014. The first complaint listed fifteen separate allegations. The complaints were filed on behalf of a 16-year-old boy in the 11th grade, who was given a long-term suspension. Some of the allegations related to events occurring more than one year prior to the filing of the complaint, and were not investigated. The following are some of the issues addressed by the complaint investigator:

6. (f) Teachers in the core classes did not implement the student’s IEP because they failed to collect behavioral data as specified in the IEP. The student’s IEP said “Teachers will give (the student) non-verbal cues when necessary to stay on task. Teachers will document when they give prompts and how many times they have to re-direct him per class period.” The investigator said: “The district stipulates that teachers did not collect data on prompts and redirections. It is the district’s contention that the student did not require more prompting and redirection than other students and neither the Case Manager nor classroom teachers believed these were issues of concern.” In addition, the U.S. History teacher reported that he had been unaware the student had an IEP until he was so informed at the October 2013 Parent Teacher Conferences. A violation was substantiated.

7. (h) The LEA representative on the IEP team would not allow the IEP team to make decisions during the January 3, 2014, IEP meeting because he did not have decision-making authority and needed to check with someone else before a decision could be made. The LEA representative was an Assistant Principal, who was new to the position. After some discussion at the meeting regarding a placement discussion, the meeting staffing report indicated LEA representative said he needed to get some additional information to consider the requests the parents were making. The Office of Special Education Programs (OSEP) has consistently stated that the LEA representative on the IEP team must have the authority to commit agency resources and be able to insure that whatever services are set out in the IEP will actually be provided. See 64 Fed. Reg. 12,477 (March 12, 1999). In this case, however, the investigator said there was no evidence the LEA representative lacked authority to commit the district to a proposed placement decision. Rather, it appeared the LEA representative believed the team needed more information in order to make an informed decision. The investigator said there is nothing in federal or state law that would prohibit an LEA representative from adjourning an IEP team meeting if the representative believed additional information was needed in order for good decisions to be made. This conclusion was upheld on appeal.

8. *Note, on p. 15, the case of J.Y. v. Dothan City Bd. of Ed., where a court, referring to a resolution session, said that a school does not meet this requirement by sending a Superintendent when any resolution agreement requires the board of education to approve the agreement and authorize the Superintendent to execute the agreement. • The student was long-term suspended without access to all areas of the general curriculum. • During the term of a long-term suspension, the student was offered the A+ Program, a curricular program the district had adopted. Under this program, the student would have the opportunity to earn high school credits toward English, U.S. History, and Learning Center elective credit. However, the student was also enrolled in Earth Science, Geometry, Athletic Development, Consumer and Personal Finance and Physical Education. As the investigator pointed out, the district is not required to replicate in every way those services the student would have received in the normal classroom setting, but the district must provide the student with an opportunity to access the general curriculum during a long-term suspension. A violation of law was substantiated.

9. The parent alleged that the 19 days this student was in In-School Suspension (ISS) should be counted as days of out-of-school suspension (OSS). • The investigator cited the Office of Special Education Programs’ (OSEP), U.S. Department of Education, published policy that an ISS school day would not be considered an OSS school day if the student (a) is afforded the opportunity to continue to appropriately participate in the general curriculum, (b) continues to receive the services specified on the IEP, and (c) continues to participate with nondisabled children to the extent they would have in their current placement. 71 Fed. Reg. 46,715 (Aug. 14, 2006). • The student was provided assigned work by his teacher and a special education teacher or paraprofessional provided assistance specified in the IEP. In addition, the student was assigned to an OSS classroom attended by both special and general education students. • A violation was not substantiated.

10. The parent also alleged that the student had been forced to sit with his desk facing away from the front of the room toward an adjacent wall since February 2014 to the filing of this complaint on May 22, 2014. The student’s IEP indicated the student was to receive preferential seating. The student’s IEP case manager said, “It is ‘preferential’ seating in that it is where [student] has few distractions and can see things easily. He is free to move his seat to face instruction and participate in class discussions, etc., but completes his independent work facing the wall to eliminate distractions.” The case manager also said the student moves his chair to face the front of the room for classroom instruction and discussion, turns to face the wall when working to complete independent work, and does so without objection. The investigator said preferential seating and the case manager’s description of how it is implemented are in agreement. That is, the student has the opportunity to access instruction and participate in class activities. And, when independent work is required, he turns his desk to the wall as a means to reduce distractions which interfere with task completion. The investigator compared this accommodation to the use of study carrels, saying “Some classrooms provide a three-sided learning carrel for students; others set up a space enclosed by book shelves.

11. The options to devise ‘preferential seating’ are many and teachers may change them from time to time depending upon student reactions to them, but as long as each option is compliant with an IEP, as in this case ‘near the teacher and close to visual instructions,’ it may be implemented.” The investigator said if the parent objected to this accommodation, she should address her concerns with the IEP team. The parent also appealed this decision and the appeal Committee agreed with the parent and overturned the complaint report. The Committee noted that the IEP stated that the student will receive preferential seating. The IEP also stated that the rationale for preferential seating was that the student “will be more successful if he is seated near the teacher and close to visual instructions.” The committee said that the ordinary meaning of the term “preferential seating,” along with the plain language used in the IEP to explain the rationale for the preferential seating, did not support the interpretation that this IEP provision was intended to be used to require the student to turn his desk away from the front of the classroom to an adjacent wall, where the student was no nearer to the teacher and where no visual instruction was provided.

12. Parents alleged that the district did not implement the behavior intervention plan (BIP) in the IEP. • The investigator found that the BIP had been implemented, except for one intervention. The second intervention in the BIP called for the student to fill out a point sheet. This practice proved unsuccessful, and after discussion with the parent and special education coordinator, the special education teacher began completing the point sheet herself. The law requires districts to provide special education and related services in conformance with an IEP. Therefore, when an intervention in a BIP proves to be ineffective, there are two options available to change it. First, the IEP team could have convened to determine whether the intervention should be removed from the BIP. Second, the parent and the district could have agreed not to convene an IEP Team meeting for the purposes of making the BIP changes, and instead could have developed a written document to amend or modify the BIP. Neither option was used in this case. Instead, the district, in accord with the parent’s agreement, made the BIP change by an informal process of an e-mail and a phone conversation. The investigator added that, in this case, the point sheet is completed each day and sent home with the student. The only deviation from the IEP is that the teacher is recording the points instead of the student. Although, the complaint investigator recommended the IEP team address this issue at its next meeting, citing L.C. v. Utah State Bd. of Educ., 43 IDELR 29 (10th Cir. 2005), the investigator determined that this change of who records the points on the sheet is only a minor deviation from the student’s IEP, and not a violation of FAPE. *Also note that changes to specific interventions in a BIP are considered changes in methodology and not a material change inservices. Thus, changing interventions within a BIP requires prior written notice, but does not require parent consent. See Kansas Special Education Process Handbook, Chapter 1, § E 5.

13. An education advocate filed a complaint alleging the student was not receiving the number of minutes of special education services specified in the IEP of a 13 year-old boy with a hearing impairment and an intellectual disability. The IEP stated the student would receive special education services from 7:30 a.m. to 2:30 p.m. The education advocate requested that a para with sign language skill be assigned to accompany the student on the bus to and from school. The school made the assignment, but adjusted the student’s school day to 7:15 a.m. to 2:15 p.m. The investigator determined that the student continued to receive the same number of minutes of services specified in the IEP and so the allegation was not substantiated. *It is important that any change to a child’s school day be made by the child’s IEP team (not by administration), and that the decision of the team is based on meeting the individual needs of the child.

14. Other State Case • Payne v. Peninsula Sch. Dist., 113 LRP 35379 (W.D. Wash. 2013) • In this case the parent sued their child’s school district, school, the teacher, and the superintendent under Section 1983 of the Civil Rights Act for the teacher’s ongoing practice of placing young children with disabilities in a “safe room.” In the present action the court allowed the case to proceed to determine whether the district was liable for the teacher’s use of the safe room due to evidence that indicated that the school district was well aware of this practice. Although this case has not reached an ultimate resolution there are some helpful things we can take from the present action.

15. This court affirmed a student’s constitutional right to be free from excessive force. This is something staff should keep in mind when using seclusion and restraint with students. Even if it is an emergency, excessive force cannot be used with a student. The parents raised many arguments to attempt to establish the district’s liability over the teacher’s use of the safe room. One of these arguments is a good reminder of why districts should take their training and data review of emergency safety intervention (ESI) incidents seriously. A district’s liability can be established by showing that the district failed to adequately train or supervise staff in a manner that amounts to deliberate indifference. Courts have found that districts were liable for not providing sufficient training on a certain topic based on the needs of the students the serves. One other thing to keep in mind is that the Kansas State Board of Education’s ESI regulations do not relieve a district of its obligation to keep its students safe. A school district must protect its students from reasonably anticipated dangers. A school district also has the responsibility to protect its students from foreseeable harm by other students, teachers, and third parties.

16. COMING ATTRACTIONS:

17. YODA • Youth Outcome Driven Accountability • It is a risk-rubric that 1) assigns a value to student outcomes and 2) assigns a value to required components of monitoring for receipt of federal grant monies. • When July 1, 2015 • Where: Across EC, SPED and Title services (ECSETS) with input from other teams in the state agency. • Why: It’s required

18. Components of YODA • Results-are federal funds getting results • Change-new personnel, systems and programs • Audits-State and Federal • Monitoring-Federal and State, timely and accurate data

19. SB 367 Student Data Privacy Act • SB 367 creates the Student Data Privacy Act, which requires that any student data submitted to and maintained by a statewide longitudinal student data system may be disclosed only to individuals or organizations as outlined in the bill. Principally, this means statewide longitudinal student data maintained by KSDE may, without the need to obtain consent, be disclosed to: (a) authorized personnel of education agencies who require such disclosure to perform their required tasks; (b) to the student and/or parent if the data pertains solely to such student; (c) any other state agency or service provider who performs a function of instruction, assessment or longitudinal reporting, provided there is a data sharing agreement; or (d) to comply with a lawful subpoena or court order.

20. This law went into effect on July 1, 2014. Most, if not all, statewide longitudinal student data systems that you work with would be any web application, maintained by the Kansas State Department of Education (KSDE), accessed through our authenticated applications portal, and which assigns a student number. Most of the requirements of this new law affect KSDE and its staff, but there are a few things you should be aware of. Each school district is required to provide annual written notice to each student’s parent or legal guardian that student data may be disclosed for inclusion in a statewide longitudinal data system maintained by KSDE according to this law. This notice must be signed by the student’s parent or legal guardian and kept by the district. Additionally, every local board of education must adopt a policy in accordance with this law. This new law prohibits a school district from collecting biometric data from a student without the necessary consent. Biometric data means one or more measurable biological or behavioral characteristic data that can be used for automated recognition of an individual, such as fingerprints, retina and iris patterns, voiceprints, DNA sequence, facial characteristics and handwriting

21. This new law also prohibits administering a test, questionnaire, survey, or examination to a student containing any questions about the student’s or the student’s parents’ or guardians’ personal beliefs or practices on issues such as sex, family life, morality or religion, unless the student’s parent or guardian has been notified in writing and provided consent to this test. This provision does not prevent a school counselor from providing counseling services to a student, including any tests or forms that are a part of those counseling services. Any information that the school counselor collects from these tests or forms may not be kept on a personal mobile electronic device which is not owned by the school district. The only exception listed for this provision is for a school counselor, providing counseling services to the student and administering tests or forms which are a part of those services. If your district uses any other staff member to provide counseling services to a student, such as a school psychologist, the district will need to provide the appropriate written notice and receive parental consent before administering the tests described here.

22. This new law also prohibits the use of any device or mechanism to assess a student’s physiological or emotional state without written consent. Of course, district personnel are permitted, and should continue, to observe the children in their care for signs of physiological or emotional stress. The attorney general or district attorney is able to enforce this section by moving for a court to order a district or state employee to stop disclosing student data in violation of this law. In the event of an unauthorized disclosure of personally identifiable student data the district or agency must notify the parent, or adult student, of the disclosure. Your district is required to follow this new state law regarding student data submitted to and maintained by a statewide longitudinal student data system. Your district will continue to follow the Family Educational Rights and Privacy Act (FERPA), the Protection of Pupil Rights Amendment (PPRA), and the confidentiality provisions of the Individuals with Disabilities Education Act (IDEA) regarding student education records.

23. We are a department driven by compassion and integrity. We are responsible for doing what is right and legal, so may need your forgiveness as we deliver information of what needs to be done.