Special Education

1. Special Education Patricia R. Andrews Andrews & Price

2. History • 1972-PARC Consent Decree Challenged the education of mentally retarded students in PA • Agreement to provide educational services to all children • Established 1st due process hearings to challenge program • Hearings very simply • Districts usually prevailed

3. History • 1975 – Public Law 94-142 • Modeled after the PA scheme • No major changes for PA • Hearings more complex • New issues • Advocates • Some lawyer involvement

4. History • 1986 – Smith v. Robinson • U.S. Supreme Court Case • Held no attorney’s fees available for prevailing parties under P.L. 94-142

5. History • 1988 – Protection for All Handicapped Children Act • 94-142 amended to provide for attorney’s fees for prevailing party • Only for parents • No meaningful substantive changes • Parent lawyers now come on scene • More complex and longer hearings

6. Major cases • Amy Rowley v. Hendrick Hudson S.D. • Deaf student requesting an interpreter as part of educational program • Holding: • Substantive: children are only entitled to an appropriate, not best, program • Procedures: cannot have substantively appropriate program if procedures not followed

7. Major cases • Oberti • Down Syndrome child requesting inclusion in the regular education environment • IDEA adopts the Court’s decision • Holding: Children are entitled to be educated in the least restrictive environment • Children educated with nondisabled peers to maximum extent appropriate • Must provide supplementary aides and services to allow inclusion to be satisfactorily achieved

8. Major Cases • Gaskins Consent Decree • In the process of being finalized • Emphasizes requirement of IEP Team to appropriately consider LRE before making placement determinations • Monitored by PDE

9. Major cases • W.B. v. Matula • Third Circuit • Holding: school districts can be liable for monetary damages as well as compensatory damages • Every other circuit has held the opposite

10. History • 1997-IDEA • 1st meaningful substantive changes in 22 years • Reauthorization finalized in 2004 • Effective July 1, 2005

11. IDEA • Incorporates the holdings of PARC, Rowley, Oberti • School must identify all children with disabilities and provide FAPE • FAPE is an individualized education program designed to meet the needs of the child that is reasonably calculated to provide meaningful educational benefit • Procedures must be followed • Education must be in the least restrictive environment • Parents have due process rights

12. IEP Team • The IEP Team is the decision maker under IDEA • Responsible for developing, reviewing and revising an IEP • There are no individual decisions

13. Required Members of the IEP Team • IEP Team includes • Parents • At least 1 regular education teacher of the child • At least 1 special education teacher of the child • LEA • Qualified to provide or supervise the provision of SDI; is knowledgeable about the general curriculum; is knowledgeable about the availability of resources of the public agency

14. IEP TEAM ATTENDANCE • An IEP team member shall not be required to attend all or part of the IEP meeting if the parent in writing and the LEA agree that 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 at the meeting • DOCUMENT!

15. IEP TEAM ATTENDANCE • An IEP team member may be excused from attending all or part of the IEP meeting when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services if the parent in writing and the LEA consent to the excusal and the member submits, in writing to the parent and Team input into the development of the IEP prior to the meeting

16. IEP TEAM ATTENDANCE • Is this really helpful? • This provision requires written documentation – do not forget this step – cannot just leave! • Does this take more time than just attending the meeting itself? • RECOMMENDATION: As a general rule, the required members of the Team should be present throughout the meeting – this provision should be the exception to the rule.

17. AMENDING THE IEP • Changes after the annual IEP meeting: • Parent and LEA may agree not to convene an IEP meeting • Instead may develop a written document to amend or modify the current IEP • Can still hold a full team meeting • Parent shall be provided with the revised document

18. AMENDING THE IEP • RECOMMENDATION: • Too many pitfalls: • Must document the agreement – takes time • Are all teachers notified of changes? • Are parents truly aware that a change is being made to the IEP? • GENERAL RULE: Hold the IEP Team meeting! This should be the exception to the rule.

19. AMENDING THE IEP • Changes can be made by amending the IEP rather than by redrafting the entire document. • Document this clearly to avoid confusion • Provide parent with a copy of the changes

20. IMPLEMENTATION • Once IEP is agreed to, must be appropriately implemented • IEP is a legally binding agreement • IEP Team agreed that the items in the IEP are the required special education services to provide child with FAPE • Entire IEP must be followed • Cannot chose “portions” of IEP to implement • As the LEA – must monitor implementation

21. “Why should I care?” • Extreme-Doe v. Withers-Teacher held personally liable for money damage for failing to implement the IEP. (School insurance did not cover him). • This teacher actively refused to implement the specially designed instruction even after administration cited him. • Court reasoned that this was sufficiently egregious conduct to defeat claims of immunity. • Jury returned verdict against high school teacher for $5,000.00 compensatory and $10,000.00 punitive.

22. Why Should I Care? • Discipline - 24 P.S. § 11-1122 • Incompetency • Unsatisfactory Rating • Persistent negligence in the performance of duties • Willful neglect of duties • Failure to follow District Policy or Administrative directives

23. Understanding LRE • “Children placed in special education are general education children first” • President’s Commission on Excellence in Special Education

24. Understanding Least Restrictive Environment • Inclusion is not a legal term-LRE is the law. • Legal mandate that disabled children should be educated, to the maximum extent appropriate, with their nondisabled peers. • Presumption is that children with disabilities are to be educated in regular classes.

25. LRE • Shift in emphasis! • Prior to 1997 IEP explained the extent a child would be able to participate in reg. Ed. now an IEP must explain the extent the child will not be placed in regular ed. and why.

26. LRE • Determination of educational placement made by the IEP Team – including the parents! • At least annually • Team must assure that child is removed from regular education environment only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aides and services cannot be achieved satisfactorily • Is the child making progress?

27. Prior Written Notice • A NOREP must be issued to the parents if • The District proposes to initiate or change the educational placement of a child with a disability • Parents must agree, on the NOREP before a change of placement can occur • Verbal consent is not sufficient • CANNOT CHANGE UNILATERALLY!

28. Why Should I Care? • Little Mistakes Lead to Big Problems • Due Process • Time Consuming • Adversarial • Damages • Compensatory education • Tuition reimbursement • Money • Discipline • In the job and personally

29. Why Should I Care? • Avoid problems by following IDEA’s procedures • Remember: IEP Team makes all final decisions • Remember: Parents part of Team • Remember: Obtain parental consent through a NOREP for every change – no matter how small • Remember: IEP must be fully implemented