Hot Topics in Due Process

1. Hot Topics in Due Process September 16, 2010 Office for Dispute Resolution Kerry V. Smith, Esquire Anne L. Carroll, Esquire

2. On web By issue Better search engine in development However, most cases still settle before decision written Hearing Officer Decisions

3. State Sharing Forum • Several states reported that they are starting to see appeals of Complaint Investigation Reports (CIRs) to due process. • Attorneys’ fees • “This could be a forecast of things to come”.

4. Section 504 • At Lehigh and LRP, presenters indicated that they expect Section 504 issues to become “hotter”. • ADA Amendments effective January 1, 2009, view eligibility more broadly than previously. • Possible that 504 claims will increase.

5. Section 504… • School districts must make their 504 determinations based upon the child’s disability as it presents itself without consideration of mitigating measures (e.g. medication, accommodations)

6. Section 504…… • US. Dept. of Education expected to issue guidance on how districts should adapt 504 procedures to conform to new ADA amendments.

7. RTI • Uses/misuses-RTI and Discrepancy Model • Role of RTI and other factors in identification/determination of IDEA eligibility • When should a school suspect a disability and initiate a special education referral? • RTI in PA- Planning for Implementation

8. RTI • As of 2009 Exceptional Children’s Conference (PBI), there was no case law beyond the appeals panel addressing RTI issues and SLD Identification. • Appeal 1769: If a district alleges to have used RTI in its evaluation to determine eligibility and needs of student, it needs to demonstrate it has conducted a comprehensive evaluation and adherence to an RTI methodology recognized by professional standards. • What about failure to meet grade level standards?

9. RTI • Appeal 1808: Psychologists must adhere to the generally accepted, team-based approaches when characterizing an assessment of intervention process as RTI based in their evaluations and reports.

10. RTI - Early Childhood • The National Association for the Education of Young Children, the Council for Exceptional Children's Division of Early Childhood, and the National Head Start Association are all working on a joint position statement for how RTI can work in an early childhood context. They're expected to take about two years to develop this framework.

11. Service Animals • “huge up and coming hot topic” • Does animal meet definition of service animal under ADA? • Simply characterizing animal as a “service dog” may not meet the definition

12. Service Animals • Does animal perform some of the functions and tasks that the individual with a disability cannot perform themselves? • Applicability • During school day • After school and evening events

13. Service Animals • Animals are “working animals” that “perform some of the functions and tasks that the individual with a disability cannot perform” (replacing missing functionality) • Versus treatment or instructional modality, e.g. mechanism to assist with communication, social, behavioral issues, etc.

14. Service Animals • Involve IEP team if “service animal” is a treatment modality, educational tool, necessary for access, etc.

15. Autism • Various issues concerning programming for children on the autism spectrum • LRE • Discipline

16. LRE • A hearing officer reports seeing a “resurgence” in LRE issues, especially regarding children on the autism spectrum • Some parents “adamantly opposed” to the verbal behavior approach to learning, language and behavior needs • Want provision of all services in the regular education classroom with limited pull out for related services

17. Tuition Reimbursement • The question presented in Forest Grove v. T.A. was whether parents who unilaterally enrolled their disabled child in a private school were entitled to tuition reimbursement if the child never received special education from the district. Answer: YES

18. Tuition Reimbursement Previously, tuition reimbursement was available for students “who previously received special education and related services under the authority of a public school”.

19. Tuition Reimbursement • A hearing officer reports that tuition reimbursement and the component legal standards, continue to be the issues most likely to need a hearing and decision. • School districts are more likely these days to be aggressive in asserting the inappropriateness of the private school placement…

20. Tuition Reimbursement • And arguing equitable factors….such as the parents missing meetings or otherwise failing to fully engage in the IEP process • As a basis for no reimbursement or a reduction in reimbursement

21. Tuition Reimbursement • Regarding middle and high school students, districts are much more likely to assert that students’ refusal to cooperate in using services available through the IEP should be a factor in determining the appropriateness of the IEP • Regarding both tuition reimbursement and compensatory education awards

22. Restraints and Beyond • $5 million settlement in federal civil rights suit in Scranton area school room • Parents alleged that their autistic children had been tied to chairs with bungee cords and duct tape • Plaintiffs' attorneys said the settlement reached Thursday appeared to be the largest ever in Pennsylvania involving the abuse of children in a special-education classroom. • A report issued last year by the U.S. Government Accountability Office said such cases were on the rise nationally. A bill in Congress would set standards for when and how children could be restrained in schools for their own safety or the safety of others.

23. Contact Information….. Kerry V. Smith, Esquire ksmith@pattan.net 717-541-4960, ext. 3924 Office for Dispute Resolution 6340 Flank Drive Harrisburg, PA 17112-2764 (717) 541-4960 or 1-800-222-3353 TTY Users: PA Relay 711 Email at odr@pattan.net Web address: http://odr.pattan.net