Common Legal Mistakes Districts Make

1. Common Legal Mistakes Districts Make Trish Andrews Andrews & Price 412-243-9700

2. Procedural/Substantive violations • Rowley v. Hendrick Hudson S.D. • U.S. Supreme court • Procedures just as important as substance • Procedural violations can result in a denial of FAPE

3. Procedural/substantive violations • IDEA 2004 • Hearing Officers must find that the child was denied FAPE • Did not make educational progress • Decision cannot be made on procedural violations alone • Does Not mean that procedures are no longer important

4. Procedures - Timelines • Parent does not return signed Permission to Evaluate • Don’t just ignore • Prove that we made an effort to get back • Do we believe child needs evaluated? • May need to go to due process • Otherwise, may have child find violation

5. Procedures - Timelines • Parent will not agree on an IEP date • IEP must be completed within 30 calendar days of ER or at least annually • Don’t schedule date for IEP on 30th day • Hold meeting without parent to maintain timeline • Provide with copy of IEP • Offer to hold follow up meeting at a later date

6. Procedure - Timelines • Parent does not show up at IEP • If you have time, reschedule • If not, call parents • Hold meeting without them • Just have to show we made attempts to have parents present • Send IEP • Offer to hold follow up meeting at a later date

7. Procedures - Timelines • Parents attend IEP meeting, but refuse to agree to anything • Don’t let parent scuttle timelines • Take control of meeting

8. Procedures - Timelines • Parents are equal participants at IEP meetings • But are not the supermajority • Should be open discussion regarding child’s program • Parents should make joint and informed decisions regarding child’s program

9. Procedures - Timelines • Team should try to work toward consensus, but • It is the district’s ultimate responsibility to ensure that the IEP includes services child needs to receive FAPE • If Team cannot reach consensus with parent • Make offer of FAPE • Issue NOREP • Parents have right to institute dispute resolution

10. Procedure - TImelines • What if school team members do not agree? • District’s responsibility to ensure FAPE • But must be able to defend program at due process • Need witnesses • If members of Team disagree, may be hard to prove that District’s offer is FAPE

11. Procedures - Timelines • “This IEP meeting should only take 30 minutes” • Make sure to schedule sufficient time for IEP meetings • Don’t have to let the meeting go on for hours, but • Take into consideration that parent may have an issue to discuss

12. Procedures • This leads to next issue: • May need to allow more than 1 period for an IEP Team meeting • Members cannot simply leave to go back to class

13. Procedures – IEP Members • Required members remain: • Parent • LEA • Special education teacher • Regular Education Teacher • General Rule: • Must be present at ENTIRE IEP meeting!

14. Procedures – IEP Members • IDEA 2004 • Does allow some members to be excused • Requires written parental consent • Proposed Regulations: • LEA is not permitted to leave

15. Procedures – IEP Members • When can a member be excused • the team member’s attendance is not necessary because the member’s area of the curriculum or related services is not being modified or discussed • when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services if the member submits, in writing to the parent and Team input into the development of the IEP prior to the meeting

16. Predetermined Placements • District cannot finalize placement decisions before the IEP meeting • Placement decision should be made based upon the goals and SDI in child’s IEP • Therefore, develop the IEP, then ask: • Where can this IEP be implemented

17. Predetermined Placements • Placement decisions are particularly important in light of Gaskins • Should be a thorough discussion and decision at meeting

18. Placement Decisions • Placement based upon child’s needs • Cannot be based upon availability of service • Cannot be based upon cost

19. Refusing a parent request • NOREPs are issued when district makes a recommendation • Districts do a good job of issuing for changes • Also issued when district refuses a parental request • Many districts overlook issuing for refusal

20. Inadequate IEPs • Remember what IEP must do: • Must be designed to provide child with FAPE • What is FAPE • An educational program that allows a child to receive meaningful educational benefit • What is meaningful educational benefit? • PROGRESS!

21. Inadequate IEPS • PELs must show progress • Set baselines • When developing next year’s IEP, review baseline established in PELs • Document in next year’s IEP how the child has improved from baseline • Discuss skills that the child has learned • Compare those skills to baseline

22. Showing progress • Mistake: Comparing apples to oranges • Again: progress is the cornerstone of FAPE • Helpful to show more than just subjective opinion of progress

23. Showing progress • One way of showing progress is through standardized assessments • Often an assessment is given to determine baseline • This is good! • But, then either no assessment or a different assessment is used at the end of the year • Nothing to compare • Use consistent assessments to show progress

24. Failing to hold IEP meeting • What if there is no progress? • IDEA requires IEP meetings to be held at least annually • More frequently if the child is not making appropriate progress • Highlights importance of progress monitoring

25. Failing to Hold IEP Meeting • If no or little progress is shown • Schedule an IEP meeting during year • Review and revise IEP • Must address areas in which child is failing to progress

26. Methodology • Remember that it is the District’s preference • Parents may be able to chose methodology if child fails to appropriately progress • Carefully monitor progress • Be aware of child that stays at 3rd grade reading level for 3 years

27. Changing Placement without changing IEP • LRE: child is expected to be educated with nondisabled peers • Cannot change placement if child is making progress • If child is not making progress • Must be able to show that the district has made every effort to educate child in LRE • Several IEP meetings • Numerous revisions to IEP

28. Request for IEE • Mistake: Failure to request due process if parents request IEE • Parents have right to ask for IEE at public expense • If that occurs, district has 2 choices: • Agree to pay • Request due process • Provide our evaluation is appropriate

29. Restraints • District may use passive restraint if: • Child is in danger of harming himself or others • Use of restraints shall cause a meeting of the IEP Team • Review BIP to prevent behavior from occurring.

30. Manifestation Determinations • Mistake: predetermining outcome • Manifestation determinations involve parent and LEA and relevant members of IEP Team • All parties are to have input • Decisions to be made after input is provided