THE NEW IDEIA (the Individuals with Disabilities in Education Improvement Act of 2004)

1. THE NEW IDEIA(the Individuals with Disabilities in Education Improvement Act of 2004) 2005 - PASA Workshops presented by Donna S. Weldon, Esq. and Stinson W. Stroup, Esq.

2. New Mission • Discrimination model • Access, accountability, now achievement • Alignment with NCLB • Research-based methodology

3. Pennsylvania’s Unique Problems • Chapter 14 incorporates by reference existing federal regulations • Conflict with IDEIA – Not permitted • State exceeds IDEIA requirements -- OK

4. Research-Based Methodology – New Battleground • New burden of proof for district • IEP includes • A statement of special education and related services based on peer-reviewed research to the extent practicable, to be provided to the child (20 USC § 1414(d)(1)(A)(i)(1)(iv))

5. Interaction with NCLB • LRE-separation occurs only when nature or severity of disability is such that education in regular education classes, with the use of supplementary aids and services, cannot be achieved satisfactorily • LRE in the context of challenging standards and achievement testing and subsets • Alternate assessments – separate standards • What about Gaskin?

6. Procedural Safeguards-Evaluation • Initial placement refused by parents • No complaint may be filed by district • Refusal of consent to services – defense for district and no need to convene IEP team or write IEP • 60 calendar day timeframe for evaluation from parental consent • Distinguish screenings to determine instructional strategies for curriculum implementation

7. Procedural Safeguards-Evaluationcont’d • Maximum number 1x per year unless agreed to; minimum 1x every three years • Response to Intervention v. Discrepancy Model

8. Procedural Safeguards-Evaluationcont’d • Graduation – no longer eligible • No evaluation • Summary of performance • Academic achievement • Functional performance • Recommendation: postsecondary goals

9. Procedural Safeguards-IEP • Elimination of benchmarks or short-term objectives Exception: students taking alternative assessments • How progress will be measured and when periodic reports

10. IEP • Educational performance now academic achievement and functional performance • Measurable goals now academic & functional • Services based on peer-reviewed research • Accommodations to measure achievement on state & district-wide assessments • Why alternative assessment • Guidelines for accommodations & alternative assessments

11. First IEP In Effect When Child IsAge 16 • Measurable postsecondary goals • Age-appropriate transition assessments (training, education, employment or independent living skills) • Transition services (including courses of study) • One year before majority, child informed of rights

12. Procedural Safeguards-New Flexibility • Team member attendance/excusal • Parent agrees in writing • Not being discussed or modified • Member’s written input before meeting • IEP amendment by agreement without meeting/redraft • Pilot program • Conference calls as alternative to meetings • Email communication

13. Procedural Safeguard Notices (How Often and New Contents) • Only 1x per year • First occurrence of filing complaint • Parent requests • Notice of disciplinary change of placement

14. ComplaintNew Process to Reduce Litigation • Two-year statute of limitations from date knew or should have known unless mitigating circumstances • Complaint must state following information: • Nature of problem relating to proposed initiation or change • Facts relating to problem • Proposed resolution • SEA to develop model complaint form

15. ComplaintNew Process to Reduce Litigation, cont’d • Right to object to complaint as insufficient within 15 days • Within 5 days of receiving objection to complaint, hearing officer renders decision • District responds with notice within 10 days • Non-complaining party within 10 days sends answer addressing problems

16. ComplaintNew Process to Reduce Litigation,cont’d • Amended complaint notice if agreed to or permitted by Hearing Officer • May raise no issue not in complaint

17. District Written Prior Notice to ParentOr Response When Propose or Refuse to Initiate or Change • Description of action • Explanation of why propose or refuse • Description of evaluation, assessment, record to support decision • Procedural safeguards notice • Sources for parental assistance • Description of other options considered and why rejected • Factors relevant to proposal or refusal

18. Resolution Session (NEW)Kinder, Gentler, Due Process • Required meeting • Within 15 days of receipt of parents’ complaint • Discussion of complaint to try to resolve complaint • Representative of district with decision-making authority • No attorney unless parents have attorney

19. Resolution Session (NEW), cont’d • Timelines for due process hearing commence within 30 days of receipt of complaint • Settlement agreement-either party may void within 3 business days

20. Discipline-Greater Discretion for Schools • New Manifestation Determination • New 45 School Days for IAES • New Unilateral Placement for Serious Bodily Injury • Limitations on Child Not Yet Identified • Stay-Put for all disciplinary placements

21. Manifestation Determination Review • Conducted by relevant members of IEP team • Relevant members determined by parent and LEA • To determine if misconduct • Was caused by, or had a direct and substantial relationship to disability, or • Was the direct result of failure to implement IEP

22. IAES/Special Circumstances • 45 school days replaces calendar days • Placement without regard to manifestation determination • New special circumstances of “has inflicted serious bodily injury”

23. IAES/Special Circumstances, cont’d • Serious Bodily Injury: • Substantial risk of death, • Extreme physical pain, • Protracted and obvious disfigurement, or • Protracted loss or impairment of the function of a bodily member, organ, or mental faculty

24. Requirements of Deemed to Know • Parent in writing to supervisor, administrator or teacher of need for special education or requested evaluation • Teacher or provider expressed specific concern about pattern of behavior directly to director of special education or appropriate supervisor

25. No Knowledge if: • Parent has not allowed evaluation • Refused services • Evaluation conducted and no disability found

26. Expanded Stay-Put • Parents appeal disciplinary placement or manifestation determination • During pendency of proceedings, child remains in the IAES • Does not need to be special circumstances

27. Highly Qualified (“HQ”)-- In General (section 602. Definitions) • Same meaning as NCLB • But also includes full special education certification (except charter school teachers may meet state charter school law certification requirements). • No emergency, temporary, or provisional waiver

28. HQ: Special Education Teachers teaching to alternative standards • Exclusively to students assessed against alternative achievement standards (1%) • Meet NCLB new or not new criteria; or • Elementary teacher criteria and If content is above elementary level, demonstrate subject matter knowledge as determined by State

29. HQ: Special Education Teachers Teaching multiple subjects • Meet the requirements of NCLB for any elementary, middle or secondary school teacher who is new or not new to the profession • If not new- demonstrate competence in all core academic subjects in same manner as required for a elementary, middle or secondary teacher (may use HOUSSE) • If new and highly qualified in math, language arts or science may demonstrate competence in other areas in same way as required for elementary, middle or secondary teacher (may use HOUSSE) within 2 years.

30. HQ: How this will play out in Pennsylvania, we think, • Current teachers: • 1) Certified special education teachers are highly qualified as assigned to provide support • 2) Certified special education teachers teaching content at any level will have to demonstrate content proficiency in some way

31. HQ: currently teaching to elementary PSSA • Hold a valid Instructional I or Instructional II certificate • Have taught elementary content • May use Bridge II to become highly qualified for elementary education • Transcript review or • Praxis test of Fundamental Subjects content knowledge (met by all certified after 1987)

32. HQ: Currently teaching to alternate assessment • Meet same requirements as teachers of elementary content.

33. HQ: Currently teaching content to middle-secondary PSSA • Hold a valid Instructional I or Instructional II certificate • Hold a content area certificate or enter Bridge I in order to earn a content area certificate. (Can earn content area certificate by passing relevant Praxis). • Enter Bridge II for additional endorsements to become highly qualified in additional subjects

34. HQ: Bridge I (see www.pde.state.pa.us) • Bridge requirements (Pa’s HOUSSE) • Full time teaching • Instructional I or II issued before July 1, 2004 • Currently assigned to core content for which not Highly Qualified • Earn 12 points for experience to get on Bridge • Earn 18 additional points within next 3 years • Can avoid Bridge I by passing relevant content area Praxis to earn content certificate in second area

35. HQ Bridge II (see www.pde.state.pa.us) • Getting on Bridge II • Teacher of multiple subjects in self-contained classroom at some time since 2000-2001 school year • Has a content area certificate (can be obtained through traditional means, by passing relevant Praxis, or by Bridge I). • Meets experience requirements to get on Bridge I • Demonstrates satisfactory performance evaluations using PDE approved form

36. HQ: Bridge II (cont) • Getting off Bridge II with designations • Teacher must haveearned at least three college credits in content area and • Pass praxis test of Fundamental Subjects: Content Knowledge or Elementary Education Content Knowledge or • if pre-1987 certificate holder, document successful teaching of content for at least one full year.

37. HQ: Certification v. Designation • Bridge I results in a certificate • Bridge II results in a designation of “highly qualified” • Holder of certificate can teach subject in any setting • Holder of designation is highly qualified to teach subject only within scope of his or her certificate

38. HQ: legal effect • Holder of certificate can be assigned to teach within the scope of certificate without penalty. • If not highly qualified, district must notify parents of students assigned to that teacher that he or she is not highly qualified. • No “right of action” created by failure of employee to be highly qualified

39. HQ: Pipeline still a problem • If new and highly qualified in math, language arts or science may demonstrate competence in other areas in same way as required for elementary, middle or secondary teacher (may use HOUSSE) within 2 years.

40. Early Intervening Services • Unidentified students who need additional academic and behavioral support • Professional development to enable • Scientifically-based academic instruction • Behavioral interventions, including scientifically-based literacy instruction • Educational & behavioral evaluation, services supports, including scientifically-based literacy instruction

41. Within PA FAPE, comparable services to previous IEP Consultation with parents Until adopts previous IEP or adopts new IEP Move promptly to obtain records Outside PA Same, except conduct an evaluation Children Who Transfer School DistrictsWithin Same Academic Year

42. Equitable Participation IU subgrantee responsibilities • Written affirmation of input from private schools/parents on child find, determination of funding, participation in services • How, where, and by whom services will be provided • Explanation of reasons for refusing services • Private school may file complaint with SEA • Appeal to OSEP

43. Odds and Ends • Prohibition on mandatory medication • “Part ‘C’ IEP transition – invite service representative” • New restrictions on hearing officer’s use of procedural violations • Gifted special education • Hostile parent

44. Compensatory Education • Knows or Should Have Known IEP Failed • Money to Buy Developmental, Remedial or Enriching Instruction • Compare Tuition Reimbursement

45. Compensatory Education, cont’d • Peer-reviewed research basis for methodology • Measurement of progress/academic achievement – impossible to assess programs • FBA/BIP • Failure to implement • Identified Needs Not Addressed in Goals, Benchmarks

46. Compensatory Education, cont’d • No Instruction Only Accommodation • Failure to Implement SDI’s, Consultation, Related Services • Failure to Identify or Evaluate • Parent Request Ignored

47. Compensatory Education, cont’d Calculation of Damages • Number of Hours Missed Service • Number of School Days • Salaries and Benefits (Actual/Median) • Poison the Entire Day?

48. Court Award of Attorneys Fees • Against parents attorney if- • Frivolous, Unreasonable, or Without Foundation (F, U, WF) Complaint • Continues to litigate after Becomes clear F, U, WF • Against attorney or parent if- • Complaint was presented to harass, cause unnecessary delay, or needlessly increase cost of litigation

49. Within 15 days of receipt Within 10 days of receipt Due Process Complaint NoticeService to Other Party & ODRIdentifying Information; andDescription of Problem re: Proposed Change or InitiationProposed Resolution Objection to Sufficiency Service to other party & H.O. Failure to meet notice reqs. District’s Response In lieu of prior written notice • why district proposed or refused action • other options considered • why objection rejected • description of evaluation, assessment record used as basis • description of relevant factors Does not preclude objection Within 5 days of receipt Determination of Sufficiency of D.P. Complaint Notice Amended Complaint Notice Other Party Consents & Opportunity for Mtg H.O. Permits More Than 5 Days Before Hrg. Timeline Recommences When File Amended Notice Non-Complaining Party Response Address Issues Raised in Complaint

50. Due Process Complaint NoticeService to Other Party & ODRIdentifying Information; andDescription of Problem re: Proposed Change or InitiationProposed Resolution Within 15 days of receipt Within 30 days of receipt Resolution Session LEA No solicitor unless parent has attorney Discussion by parent of complaint & facts District opportunity to resolve District & parent must waive in writing or agree to mediation to avoid Written settlement agreement Due Process Hearing Limited to issues in notice No FAPE based on procedural flaws only if defects: • impeded child’s right to FAPE • impeded parent’s right to participate in decisions • caused deprivation of benefit Within 3 Business Days of Agreement Execution Either Side May Void