Ensuring Students with Disabilities are Served

1. Ensuring Students with Disabilities are Served Jennifer Segal jsegal@bruman.com Mike Bender mbender@bruman.com Brustein & Manasevit, PLLC Spring Forum 2015

2. Topics Covered • Discipline • Postsecondary Transition Services • Documentation BRUSTEIN & MANASEVIT, PLLC

3. Legal Resources • IDEA Website - http://idea.ed.gov/ • Code of Federal Regulations: 34 C.F.R. Part 300 • http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title34/34cfr300_main_02.tpl • http://idea.ed.gov/download/finalregulations.pdf • ED’s Rehabilitation Services Administration – WIOA Resource Page • http://www2.ed.gov/about/offices/list/osers/rsa/wioa-reauthorization.html (including NPRM) BRUSTEIN & MANASEVIT, PLLC

4. What To Do When a Child is Disciplined?34 C.F.R. §§ 300.530 – 300.536 • Is the child identified as a child with a disability? • NO = No IDEA protections (34 C.F.R. § 300.534(d)) • Has an evaluation been requested after or during discipline? • If yes, then expedited evaluations • Stay Put does not apply. Child remains where placed by the LEA. • YES = Determine if Change of Placement • NO, BUT the public agency had knowledge that the child was a child with a disability before the behavior occurred = Determine if Change of Placement. (34 C.F.R. § 300.534(a-b)) • Parent expressed in writing that child needed special education services • Parent requested an evaluation • School personnel expressed specific concerns about a pattern of behaviors to the director of special education or other supervisory personnel BRUSTEIN & MANASEVIT, PLLC

5. Was the Removal a Change of Placement? 34 C.F.R. §§ 300.530 – 300.536 2. Was the Removal a Change of Placement? • Based on “unique circumstances” of the child (34 C.F.R. § 300.530(a)) • Removal ≠ change of placement (34 C.F.R. § 300.536) • 10 consecutive school days or less • Series of short-term removals that are not a pattern (even if greater then 10 days) • Determined by the public agency, but subject to review through due process (34 C.F.R. § 300.536 (a)(2)) • (a) Length of each removal; (b) Total time removed; (c) Proximity of removal; (d) Behavior not substantially similar; etc. BRUSTEIN & MANASEVIT, PLLC

6. Was the Removal a Change in Placement?34 C.F.R. §§ 300.530 – 300.536 • Removal = change of placement (34 C.F.R. § 300.536) • Exceeds 10 consecutive school days • Series of short-term removals that are a pattern • Special Circumstances • 45-day removal – drugs, weapons, serious bodily injury to another (34 C.F.R. § 300.530(g)) • Hearing officer removal - 45-day removal requested by LEA through due process bc substantially likely to injure self or others in current placement (34 C.F.R. § 300.532) • Parent Notification (34 C.F.R. § 300.530(h)) BRUSTEIN & MANASEVIT, PLLC

7. Case Study #1: 45 Day Removal D.R. is a second grader with an IEP and a primary disability of ED. Last Tuesday, D.R. and a friend were drawing during an after-school enrichment program held by the school. D.R. realized that small pencil sharpener had a blade in it. After a little finagling, D.R. was able to remove this blade and began to pretend to have a sword fight with his friend. The play sword-fighting quickly turned south and D.R. cut his friend’s finger. D.R.’s friend required three stitches. Believing that D.R. had used the blade as a weapon to cause serious bodily injury, the school removed D.R. for 45 days. Question: Was the school justified in removing D.R. for 45 days? BRUSTEIN & MANASEVIT, PLLC

8. Was the Removal a Change in Placement?34 C.F.R. §§ 300.530 – 300.536 • Change of Placement? • No: Done (document decision) (possible exception 34 C.F.R. § 300.530(d)(4)) • Yes: Manifestation Determination (34 C.F.R. § 300.530(e)); • Functional Behavior Assessment; and • Behavior Intervention Plan (34 C.F.R. § 300.530(d)(1)(ii), (f)(1)(i)) BRUSTEIN & MANASEVIT, PLLC

9. A Manifestation of the Child’s Disability?34 C.F.R. §§ 300.530 – 300.536 3.Was the behavior a Manifestation of the Child’s Disability? (Decided By IEP Team) • No – Stay Put does not apply (300 C.F.R. § 300.530(c)) • Yes – Manifestation Determination (300 C.F.R. § 300.530(f)) • Stay Put: Child Remains in School • Exceptions 45-Day Removal BRUSTEIN & MANASEVIT, PLLC

10. Case Study #2: MDR A.D. is a student diagnosed with ADHD and found eligible for special education and related services with a primary disability of OHI. One day in class, A.D. begins to repeatedly poke another student with a pencil, which causes a fight. The teacher sends A.D. to the principal’s office to reset. Within ten minutes of entering the principal’s office, A.D. begins talking loudly with another student and is removed to an empty special education meeting room. While in the SPED meeting room, A.D. sits calmly for 10 minutes but then, angry at being sent out twice, gets up and flips over the SPED director’s chair. He is then calm for another 10 minutes before knocking everything except the laptop off the director’s desk. Once discovered, A.D. is suspended for 3 days, which brings his total days suspended over 10. Question: Was the student’s behavior a manifestation of the student’s disability? BRUSTEIN & MANASEVIT, PLLC

11. Are Services Required? 34 C.F.R. § 300.530(d)(4) & (d)(5) 4. Are services required? • If not a change of placement: MAYBE • 10 day rule: no services required for first 10 school days of disciplinary removal in school year unless services are provided to a child without disabilities who is similarly removed. • LEA can always decide to provide services even when not required. • If a change of placement: YES (34 C.F.R. § 300.530(d)) • IEP team decides on services (allow child to continue to participate in general education curriculum, although in another setting and progress on IEP); services mandatory. • 45-day removal, services may be determined by Hearing Officer. BRUSTEIN & MANASEVIT, PLLC

12. Disciplinary Options BRUSTEIN & MANASEVIT, PLLC

13. Best Practices • Written policies and procedures • Staff training on policies and procedures • Regular communication between special education department and administration (or staff responsible for discipline) • Established forms and form letters BRUSTEIN & MANASEVIT, PLLC

14. Expedited Hearings • Expedited Hearing? (34 C.F.R. § 300.532) • Parent Appeals Manifestation Determination • LEA Requests 45-day removal by hearing officer • Timeframes? • Hearing – 20 school days from date complaint is filed • Resolution meeting (unless waived) w/in 7 days of date complaint notice is received • Hearing proceeds, unless matter resolved w/15 days of date complaint is received • Decision – 10 school days after hearing • Placement during Appeal? (34 C.F.R. § 300.533) • Child must remain in the alternative education setting pending the decision of the hearing officer or until the expiration of the 45-day placement or disciplinary action, whichever occurs first. BRUSTEIN & MANASEVIT, PLLC

15. Postsecondary Transition Transition Services

16. It’s all about…. COLLABORATION

17. Or, if the blue people don’t quite connect, a better example… BRUSTEIN & MANASEVIT, PLLC

18. What are Transition Services under IDEA? • Transitions services under IDEA means a coordinated set of activities for a child with a disability that – • Is designed within a results-oriented process - focused on improving academic and functional achievement of the child to facilitate movement form school to post-school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. • Is based on individual needs, taking into account strengths, preferences, and interests and includes: instruction, related services, community experiences, development of employment and other post-school adult living objectives, and (if appropriate) acquisition of daily living skills and provision of a functional vocational evaluation. • It may be special education or related services. 34 C.F.R. § 300.43. BRUSTEIN & MANASEVIT, PLLC

19. Some highlights: • Results-oriented process- focused on improving academic and functional achievement of the child to facilitate movement from school to post-school activities. • Is based on individual needs, taking into account strengths, preferences, and interests. BRUSTEIN & MANASEVIT, PLLC

20. When? • Beginning not later than the first IEP to be in effect when the child turns 16, or younger if determined by the IEP Team (or required under State). 34 C.F.R. § 300.320(b). • (Exception- children with disabilities in adult prisons whose eligibility will end because of age before they are eligible to be released. 34 C.F.R. § 300. 324(d)(ii).). BRUSTEIN & MANASEVIT, PLLC

21. Who? • General IEP team members • Student must be invited • If student does not attend, must take other steps to ensure his/her preferences and interest are considered. • To the extent appropriate, with parental consent (or student’s if over 18), public agency must invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services. 34 C.F.R. § 300.321(b). BRUSTEIN & MANASEVIT, PLLC

22. Agency Collaboration • Examples of agencies that are likely to be responsible for providing or paying for transition services may include the state department of vocational rehabilitation, the state department of social services, the state department of mental health. BRUSTEIN & MANASEVIT, PLLC

23. Transition Services (IEP Requirements) • The IEP must include: • Appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; • The transition services (including courses of study) needed to assist the child in reaching those goals. BRUSTEIN & MANASEVIT, PLLC

24. Examples: • Carrie I. v. Dep’t of Educ., 869 F.Supp.2d 1225 (D. Haw 2012). The court found the following transition plan noncompliant: BRUSTEIN & MANASEVIT, PLLC

25. Carrie I. v. Dep’t of Educ. BRUSTEIN & MANASEVIT, PLLC

26. Carrie I. v. Dep’t of Educ. • Court found the following procedural violations: • Failed to include measurable postsecondary goals and to include a statement of transition services (including courses of study) needed to assist the child in reaching those goals. • Failed to invite State Department of Vocational Rehabilitation representative (DVR) to IEP meeting. • Failed to conduct transition assessments. • Found denial of FAPE due to: • Loss of the opportunity to have a representative during preparation of the IEP. • “[A] procedural fault rises to [a denial of FAPE] when a school fails to conduct proper assessments and then provides inadequate services.” In other words, we have no idea how these goals and services were selected. BRUSTEIN & MANASEVIT, PLLC

27. Sample Transition Plan Template* • Components: • Student input • Age appropriate transition assessment results • Coordinated set of activities for post-secondary education and Training • Coordinated set of activities for employment • Coordinated set of activities for independent living (if applicable) *IDEA does not require a specific format BRUSTEIN & MANASEVIT, PLLC

28. Student Input • Academic Interests– e.g., best subject is English because he likes to write. • Functional interests – e.g., wants to be gainfully employed and live on his own. • Employment interests- e.g., expressed interest in being a brain surgeon, because he wants to help people. BRUSTEIN & MANASEVIT, PLLC

29. Age- Appropriate Transition Assessment Results • Educational Assessment Results Summary– e.g., Scantron Performance Series • Functional Skills Assessment Results Summary – e.g., Casey Life Skills Assessment • Vocational Assessment Results Summary – e.g., O*NET Interest Inventory BRUSTEIN & MANASEVIT, PLLC

30. Components of Coordinated Set of Activities for Post-Secondary Education and Training, Employment and Independent Living (Post-Secondary Education and Training as an Example) BRUSTEIN & MANASEVIT, PLLC

31. Post-Secondary Education and Training (cont.) • Long Range Goal(s)- e.g., after high school, Daniel will attend a 2 to 4 year community college and/or trade school. • Short-Term Measurable Goal(s) - e.g., Daniel will participate in at least 2 traditional standardized tests necessary for post-secondary admission with 100% accuracy; will participate in at least two post-secondary fairs, events provided by school and will complete teacher created questionnaire with 90% accuracy. • Transition Services- e.g., career exploration 60 min. per month, post-secondary advisement 3 hrs. per week. BRUSTEIN & MANASEVIT, PLLC

32. Post-Secondary Education and Training (cont.) • Extracurricular Activities and Community Participation • Course of Study – long range education plan that directly relates to the student’s anticipated post-school goals, preference and interests (e.g., required courses for graduation or necessary / helpful courses for admission to post-secondary programs of interest). BRUSTEIN & MANASEVIT, PLLC

33. Now back to that agency collaboration…. BRUSTEIN & MANASEVIT, PLLC

34. Workforce Innovation and Opportunity Act (WIOA) Amendments to the Rehabilitation Act of 1973, Vocational Rehabilitation Services Program BRUSTEIN & MANASEVIT, PLLC

35. WIOA and Vocational Rehabilitation Transition Requirements • Heightened emphasis on the provision of services to students (and youth) with disabilities to ensure meaningful opportunities to receive the training and other services they need to achieve employment outcomes in competitive integrated employment. • States are now required to reserve 15% of VR allotment to provide “pre-employment transition services” to student with disabilities who are eligible or potentially eligible for VR services. (29 U.S.C. § 730(d)). BRUSTEIN & MANASEVIT, PLLC

36. WIOA and Vocational Rehabilitation Transition Requirements • Pre-employment services include, among others: • (1) job exploration counseling • (2) work-based learning experiences, which may include in-school or after school opportunities, or experience outside the traditional school setting (including internships), that is provided in an integrated environment to the maximum extent possible • (3) counseling on opportunities for enrollment in comprehensive transition or postsecondary educational programs at institutions of higher education BRUSTEIN & MANASEVIT, PLLC

37. WIOA and Vocational Rehabilitation Transition Requirements Pre-employment services (Cont.) • (4) workplace readiness training to develop social skills and independent living • (5) instruction in self-advocacy, which may include peer mentoring • (6) Authorized activities (29 U.S.C. § 733). BRUSTEIN & MANASEVIT, PLLC

38. WIOA and Vocational Rehabilitation Transition Requirements Required responsibilities of DSUs, include- • attending individualized education program meetings for students with disabilities, when invited; • working with schools, including those carrying out transition services activities under IDEA, to coordinate and ensure the provision of pre-employment transition services. (29 U.S.C § 733(d)). BRUSTEIN & MANASEVIT, PLLC

39. WARNING:Entering the…. BRUSTEIN & MANASEVIT, PLLC

40. WIOA and Vocational Rehabilitation Transition Requirements • WIOA does NOT reduce the responsibility of the LEA or other public agency under IDEA to provide or pay for transition services that are also considered to be special education or related services necessary for FAPE. • Decisions related to financial responsibility for the provision of transition services must be established at the state and local level during the collaboration and coordination of transition and pre-employment transition services (e.g., through an inter-agency agreement). BRUSTEIN & MANASEVIT, PLLC

41. Agency Default- Responsibility for FAPE BRUSTEIN & MANASEVIT, PLLC

42. Best Practices • Ensure development of interagency agreements • IEP template/instruction on development of compliant transition plans • Consent form for inviting outside agencies to IEP meetings when transition planning is discussed • Evidence of invite • Student survey template to gauge post-secondary interests • List of available transition assessments BRUSTEIN & MANASEVIT, PLLC

43. DOCUMENTATION BRUSTEIN & MANASEVIT, PLLC

44. The Basics • IEPs • Current PLOPS • Appropriate goals • Evaluations • Meeting Notes • Service Tracking Logs • See EDGAR § 76.731 (grantees and subgrantees must maintain records to demonstrate compliance with all program requirements) • Where and how are these documents maintained? BRUSTEIN & MANASEVIT, PLLC

45. Prior Written Notice34 C.F.R. § 300.503 • Must be given to parents if the LEA proposes or refuses to initiate or change the following: • Evaluation of a child, • Identification of a child, • Educational placement of a child, or • Provision of FAPE to a child. • Notice Must Include: reasons for action or refusal and include available procedural safeguards BRUSTEIN & MANASEVIT, PLLC

46. Progress Data • Progress Reports • Detailed information on progress (or lack of progress) on each goal • How often? • Testing Data • State Tests • Academic Achievement BRUSTEIN & MANASEVIT, PLLC

47. Behavior Data • Behavior tracking logs • Behavior Intervention Plan • Incident Reports • Suspension/Expulsion records • Letters re: Discipline • Align general disciplinary communications with IDEA requirements • Clearly indicate what the process is for students with disabilities BRUSTEIN & MANASEVIT, PLLC

48. Communication with Parent • Letters • Phone Log • Emails The single biggest problem in communication is the illusion that it has taken place. - George Bernard Shaw BRUSTEIN & MANASEVIT, PLLC

49. Transmitting Student Records • Generally, follow Family Educational Rights and Privacy Act (FERPA) • Except if student transfers to a private school • LEA must obtain parental consent prior to releasing personally identifiable records to the private school • Parent request for student records • SEA/LEA has 45 days to respond • If third party (attorney/advocate) is requesting records, must have release signed by parents • What must be provided? BRUSTEIN & MANASEVIT, PLLC

50. Best Practices • Written policies and procedures • What must be retained? • Where are records retained? • Training staff on policies and procedures • Established forms and other documents • Monitoring records and data BRUSTEIN & MANASEVIT, PLLC