Trends in Dispute Resolution: Idaho and Beyond!

1. Trends in Dispute Resolution: Idaho and Beyond! Melanie J. Reese, Ph.D. Dispute Resolution Coordinator mreese@sde.idaho.gov

2. SEQUESTRATION • There is no indication that a decline in funding will lessen the responsibilities for LEAs to provide FAPE. Silver Lining? Most IDEA violations I’m seeing are procedural, and not costly to avoid.

3. Repeat Offenses (2012-2013) • Child Find • Initial Evaluations • Timelines • Written Notice and Procedural Safeguards • Transfer Students • Implementing IEPs • Discipline

4. Child Find and Initial Evaluations • Did the LEA have Child Find Policies in place? • Did the LEA evaluate a child suspected of having a disability? • Did the LEA conduct an evaluation at the request of a parent or provide written notice of refusal? • Did the LEA proceed with an evaluation of a student suspected of having a disability within a timely fashion?

5. From the Files . . . A DISTRICT’S PARENT RTI BROCHURE: “You may also request an evaluation at any time if you think your child may have a disability … If you choose to request an evaluation, your child must still participate in 8 to 10 weeks of Tier II intervention as part of the evaluation process.” OUT OF COMPLIANCE

6. From the Files . . . Parent writes LEA indicating daughter has: “discomfort associated with the Student’s pregnancy; an inability to concentrate; difficulty staying focused on tasks; not keeping regular and steady hours; a diagnosis of Bipolar Disorder with suicidal ideations; severe depression; Borderline Personality traits; multiple incidents of cutting and self-destructive behavior; chemically induced Lupus related to her medication for controlling Bipolar Disorder; chronic fatigue; hypothyroidism; immunodeficiency disorder; as well as substance abuse and other environmental and behavioral factors including running away out of state.”

7. Response to Parent from School Administrator: “You referenced [the Student’s] medical diagnosis and the life events that occurred over the course of the semester as the reasons she was not able to keep up with her schooling. However, all students have life circumstances or events that make it difficult to come to school, stay focused, and learn.” OUT OF COMPLIANCE

8. CHILD FIND The Ninth District Circuit Court ruled a district may not take a passive approach and wait for others to refer the student for special education services; the district must seek outIDEA-eligible students. [See Compton Unified Sch. Dist. v. Addison (9th Cir. 2010)]

9. But first, a little digression into Constitutional Law Evaluation Timelines Supremacy Clause of US Constitution Article VI, Sec. 2. of US Constitution: “Constitution, and Laws of the US ... shall be the supreme Law of the Land.” Meaning: Federal law prevails over any conflicting or inconsistent state law Idaho Code has a Supremacy Clause with respect to the Idaho Special Education Manual, too.

10. What does the Supremacy Clause have to do with Idaho Special Ed? Plenty when it comes to Evaluation timelines. IDEA states initial evaluation must be conducted within 60 days of receiving parental consent for the evaluation; If the state establishes a timeframe within which the evaluation must be conducted, within that timeframe. Idaho Code establishes Idaho’s time frame “from the date of receipt of written parental consent for an initial evaluation to the date of determination of eligibility must not exceed 60 days, excluding when school is not in session for 5 or more consecutive days. So far, so good. But . . .

11. WARNING: DISCREPENCIES AHEAD! • Idaho SPED Manual states “The time between receiving written consent for initial assessment and implementing the IEP cannot exceed 60 calendar days, excluding when school is not in session for 5 or more consecutive days.” • Idaho Code states the total timeline from determination that the student needs special education and related services to the date of implementation of the initial IEP shall not exceed 30 calendar days, excluding periods when regular school is not in session for 5 or more days. THE UNDERLINED PARTS ABOVE ARE WRONG AND SUBJECT TO THE SUPREMACY CLAUSES OF FEDERAL AND IDAHO CODE!

12. IDEA Trumps State; State Trumps Idaho Manual IDEA states “meeting to develop an IEP for a child is conducted within 30 days of a determination, and as soon as possible following the development of the IEP, special education and services must be made available.” But . . . IDAHO CODE states the total timeline from determination that the student needs special education and related services to the date of implementation of the initial IEP shall not exceed 30 calendar days. States can set more rigorous timelines, but cannot contradict Federal Law. THUS: THERE IS NO 5-DAY RULE FOR THE 30 DAY IMPLEMENTATION OF AN IEP!

13. So what are the timelines? • 60 Days from date of consent to evaluation, with 5 day rule. • IEPs must be in effect within 30 days of eligibility determination (no 5 day rule allowed).

14. How much time to get consent? • Federal guidelines from the Department of Education (DOE) do not define what the precise timeline is to comply with the IDEA mandate: “promptly request parental consent to evaluate” • The DOE instructs it generally would not be acceptable for a district “to wait several months to conduct an evaluation or to seek parental consent for an evaluation if the public agency suspects the child to be a child with a disability.”

15. Getting the Paperwork Done • Student transferring in? Get IEP and files from previous district. If you don’t get them, start a new file ASAP. You’re still on the hook! • Written Notice • Not going to evaluate after a request? • Not agreeing to an IEE? • Propose to initiate a change or assessment or refuse to initiate a change or do an assessment? • Amending IEP? • Sending offer of FAPE to student who has withdrawn/dropped out • Procedural Safeguards • Provide hard copy (not electronic, not a URL) • Parents get copies at: request for referral; IEP meetings; evaluation meetings; discipline actions • Make sure Parents get a copy of IEP!

16. Communicating IEP Responsibilities • Founded Allegation: • Did the District ensure all teachers and educational providers were aware of their specific responsibilities related to implementing the Student’s IEP, including the specific accommodations, modifications and supports? [34 CFR §300.323 (d)]

17. The Year of the Discipline Complaints For your punishment, write 100 times, “I will not waste my time on meaningless tasks.”

18. Ongoing Problem Behavior What is problem behavior? • absences, truancy, work refusal • defiance, interrupting, blurting, wandering • aggression, threats, anti-social acts • negative interactions with peers • Big Three: Weapons, Severe Bodily Injury, Drugs Founded Allegations: • Did the District review and revise, as appropriate, the Student’s IEP to consider any lack of expected progress, the Student’s anticipated needs, or other matters? [34 CFR §300.324(b)(i) and (ii)(A-E)] • Did the District consider information about the Student that was provided by the Parent in the development, review and revision of the IEP, and the provision of FAPE?[34 CFR §300.324 (b)(i)(ii)]

19. Behavior Plan vs. Discipline Plan • BIP is Proactive; Discipline Plan is Reactive • Student could have both plans • Developing only an Individual Discipline Plan for a student who requires a BIP violates IDEA Founded Allegation: Did the IEP Team consider positive behavioral interventions and supports (PBIS) in managing the behavior of the Student? [34 CFR §300.323(a)(2)(i)]

20. Functional Behavior Assessments Founded Allegation: If the Manifestation Determination resulted in a decision that the Student’s behaviors were a manifestation of the Student’s disability, did the District either conduct a Functional Behavior Assessment (FBA) or did the District develop or modify a behavior intervention plan (BIP) to address the Student’s behavior? [34 CFR §300.530(f)(1)(i-ii)]

21. Change to an Interim Alternative Educational Setting Founded Allegations: Did the Student’s IEP Team determine the interim alternative educational setting (IAES) for the Student to receive Special Education Services? [34 §CFR 300.531] Did the District make available to the Student’s IEP Team a continuum of alternative placements to meet the needs of the Student? [34 CFR §115 (a)(b)]

22. Finally . . . Please take this message home to your school boards: “We cannot expel a kid from Special Education.”

23. Founded Allegation: Did the District continue to provide educational services to the Student in order for the Student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals in the Student’s IEP? [34 CFR §300.530 (d)]

24. Questions?

25. Contact Us: Your problems are our business! Melanie J. Reese, Ph.D. Dispute Resolution Coordinator Division of Federal Programs mreese@sde.idaho.gov (208) 332-6914 Kiley Crill, Admin. Assistant Top Dog (208) 332-6912

26. www.idahotc.comTraining and Technology for Today’s Tomorrow • Website to link school professionals and parents with special education training opportunities and resources across the state • Supported By: • Idaho State Department of Education (ISDE), Special Education • Project Team: • Cari Murphy • Shawn Wright Statewide Special Education Technical Assistance (SESTA) Center for School Improvement & Policy Studies, BSU Gina Hopper, Associate Director ginahopper@boisestate.edu 208.426.4363