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Legal Update

Legal Update. Allison Markoski, Marge Resan, Paul Sherman, Christina Spector, Patti Williams Special Education Team Wisconsin Department of Public Instruction August, 2012. Legal Update 2012. Service Animals and the Revised Americans with Disabilities Act (ADA) Regulations

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Legal Update

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  1. Legal Update Allison Markoski, Marge Resan, Paul Sherman, Christina Spector, Patti Williams Special Education Team Wisconsin Department of Public Instruction August, 2012

  2. Legal Update 2012 • Service Animals and the Revised Americans with Disabilities Act (ADA) Regulations • Marge Resan, School Administration Consultant • Manifestation Determinations • Patti Williams, School Administration Consultant • Special Education Staff • Allison Markoski, School Administration Consultant • Independent Education Evaluations • Christina Spector, School Administration Consultant • Communicating with Parents in Their Native Language • Paul Sherman, School Administration Consultant

  3. Service Animals and the Revised Americans with Disabilities Act (ADA) Regulations Marge Resan, School Administration Consultant

  4. Brief Overview of Laws • The use of service animals in schools is NOT specifically addressed in: • The Individuals with Disabilities Education Act (IDEA); • Section 504 of the Rehabilitation Act; or • Wisconsin Statutes or Administrative Code.

  5. Americans With Disabilities Act (ADA) In 2010, revised regulations issued by the US Department of Justice. Title II applies to public entities, including public schools. NOT under IDEA. The new regulations make it clear this is not an issue of provision of a free, appropriate public education (FAPE).

  6. Definition of Service Animal “Any dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”

  7. General Rule and Exceptions • Instructs public entities to permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go. • Exceptions: • If the animal is out of control; or • If the animal is not housebroken.

  8. Examples of “Work or Tasks” include, but are not limited to… “Assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing nonviolent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.”

  9. “Work or Tasks” do not include… “The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.”

  10. Allowable Questions • The regulations allow public entities to ask two questions: • Is the dog a service animal required because of a disability? • What work or task has the dog been trained to perform?

  11. Public Entities May NOT: Ask about the person’s disability, Require medical documentation, Require a special identification card or training documentation for the dog, or Ask that the dog demonstrate its ability to perform the work or task.

  12. Other students or staff: Allergies, etc. Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.

  13. So what should districts do? • Be prepared in advance of these requests. • Examine policies and procedures to ensure: • Service animals are addressed, and • Existing policies and procedures are in compliance with revised regulations. • Ensure policies and procedures are implemented consistently and as written.

  14. For more information: http://www.ada.gov/service_animals_2010.htm Remember – not an issue of FAPE.

  15. Manifestation Determinations Patti Williams, School Administration Consultant

  16. Change of Placement • A change of placement occurs if the removal is for more than 10 consecutive days; or • The student has been subjected to a series of removals that constitute a pattern because: • Of More than 10 cumulative school days in a school year; • The child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and • Of such additional factors as the length of each removal, the total amount of time removed and the closeness in time

  17. Change of Placement • Whether there is a change of placement is determined on a case-by-case basis by school personnel • If there is a change of placement -- • Parents must be notified of the decision and provided a procedural safeguards notice • Services are determined by the child’s IEP team • A manifestation determination is required

  18. ManifestationDeterminations • A manifestation determination is only required in situations that constitute a disciplinary change in placement • Manifestation Determinations must be made within 10 school days after the date on which the decision to change the child’s placement is made because of a violation of a code of student conduct

  19. Manifestation Determinations(Continued) • The school district, the parent and relevant members of the IEP team determine whether the conduct is manifestation of the child’s disability • In making the determination, all relevant information in the student’s file must be reviewed, including the child’s IEP, teacher observations, and information provided by the parents.

  20. Manifestation Determinations(Continued) • The conduct must be determined to be a manifestation of the child’s disability if it is determined that: • The conduct was caused by, or had a direct and substantial relationship to, the child’s disability; or • The conduct was the direct result of the agency’s failure to implement the IEP.

  21. When the behavior is a manifestation of the child’s disability • The student must be returned to the placement from which the child was removed (certain exceptions apply) • Has a behavioral intervention plan (BIP)--the IEP team must review the plan, its implementation, and modify, if needed to address behavior • No BIP—IEP team must conduct a functional behavioral assessment, develop and implement a BIP

  22. When the behavior is not a manifestation of the child’s disability • The school district may proceed with the change in placement • Services must be provided as determined by the IEP team • The IEP team also determines where the services will be provided

  23. Exception/Interim Alternative Educational Setting • 45 school days • IAES must be determined by the IEP team • Only for • Weapons • Illegal drugs or controlled substances • Serious bodily injury

  24. Special Education Paraprofessionals Allison Markoski, School Administration Consultant

  25. Definition of Paraprofessional • PI 34.04 of the Wisconsin Administrative Code defines “aide” as: • “a school employee who works under the direct supervision of a licensed teacher in a school or district whose responsibilities include, but are not limited to, supporting the lesson plan of the licensed teacher, providing technical assistance to the teacher, helping with classroom control or management, and other duties as assigned. Aides may not serve as substitute teachers. “ • WDPI Teacher Licensing uses the term “aide.” • IDEA and NCLB use the term “paraprofessional.”

  26. Special Education Program Aide License-#883 Requires HS diploma & fingerprints. Pay $75.00 fee. Hiring requirements are established by the district.

  27. Who must obtain a Special Education Program Aide license? A paraprofessional who is assigned to assist in providing special education services per student’s IEP must hold thelicense, unless the individual holds a valid WDPI teaching license.

  28. What are paraprofessional responsibilities? • Supports the lesson plan of a licensed teacher. • Provides technical assistance to the teacher. • Helps with classroom management. • Other duties as assigned. • The paraprofessional cannot be assigned teacher duties.

  29. What are teacher responsibilities? Plans and delivers instruction. Diagnoses learning needs. Prescribes content delivery through classroom activities. Assesses student learning. Reports outcomes to administrators and parents. Evaluates the effects of instruction.

  30. What does “under the direct supervision of a licensed teacher” mean? Regular, continuing interactionbetween a properly licensed SPED teacher or a licensed SPED director and a paraprofessional including time to evaluate the services provided. Sufficient contactbetween the SPED teacher and paraprofessional. Sufficient contact between the SPED teacher and studentto diagnose educational needs, prescribe teaching and learning procedures and evaluate the effects of teaching. IDEA COMPLAINT 12-013: http://dpi.wi.gov/sped/complaints/com12013.html

  31. May a paraprofessional work as a substitute teacher? If the individual has a current teaching license, a paraprofessional may serve as a substitute for a licensed teacher. Refer to the WDPI TEPDL website for hiring a short-term and long-term substitute teacher.

  32. Does a WDPI licensed teacher need a Special Education Program Aide license to work as a special education paraprofessional? An individual who holds a valid WDPI teacher license does not need a Special Education Program Aide license.

  33. Does an educational interpreter for students who are deaf or hard of hearing need to hold a Special Education Program Aide license? No. Interpreters must obtain the Educational Interpreter – Deaf or Hard of Hearing license #825.

  34. May a paraprofessional teach in a team teaching situation? No. A paraprofessional cannot be assigned teacher duties.

  35. May a paraprofessional be assigned to provide special education services to a student with a disability in a homebound or neutral site? A paraprofessional may not be assigned teaching duties in a homebound or neutral site. A paraprofessional may support the instructional activities directly introduced to a student by the licensed special education teacher. Refer to IDEA state complaint #00-033 at http://dpi.wi.gov/sped/complaints/com00033.html.

  36. Must a paraprofessional who assists students with disabilities in community-based instruction obtain a Special Education Program Aide license? A paraprofessional who is assigned to assist in providing special education services per student’s IEP must hold the Special Education Program Aidelicense. Example – work setting, shopping, etc…

  37. May a paraprofessional be assigned to assist in a speech and language program? • Under the direct supervision of a licensed speech and language pathologist. • Not qualified to provide speech and language therapy. • Review and reinforcement can be provided by other licensed staff including sped paraprofessionals • that service should be reflected in the IEP, but not identified as speech and language therapy.

  38. May a paraprofessional have access to a student’s IEP? This is a local district or school decision.

  39. Should a student’s IEP state who provides special education services? The IEP generally does not name the specific individual providing the support.

  40. For More Information… • WDPI • Suzan Van Beaver, School Administration Consultant • (608) 267-9168, suzan.vanbeaver@dpi.wi.gov • Wisconsin Special Education Paraprofessionals • http://dpi.wi.gov/sped/paraprof.html • Special Education Aide License Requirements • http://www.dpi.wi.gov/tepdl/aide.html • Frequently Asked Questions About Special Education Paraprofessionals • Information Update Bulletin 10.05: http://dpi.wi.gov/sped/bul10-05.html

  41. Independent Educational Evaluations (IEEs) Christina Spector, School Administration Consultant

  42. The Basics • Parents have the right to an IEE • Conducted by a qualified examiner who is not an employee of the LEA • Publically funded • If parent disagree with the LEA’s evaluation of the child. • 1 publically funded IEE for each evaluation

  43. How LEAs Should Respond • Inform parents about where an IEE may be obtained and district’s criteria. • Respond without unreasonable delay • Provide the IEE at public expense OR • Request a due process hearing to show that its evaluation is appropriate • Parents have the right to obtain public funding for an IEE only after the local educational agency completes its evaluation.

  44. Words of Caution Know where you are at in the process before responding Don’t assume IEEs are only at public expense Districts may ask for a reason why a parent objects to the evaluation, but can’t require one. Districts can’t refuse to pay for an IEE because the parents failed to notify the district that they were going to get a publically funded IEE.

  45. IEE Criteria Examiner qualifications Geography Maximum amounts Unique circumstances must be allowed

  46. Results Convene an IEP team meeting Review the IEE Discuss the results Consider the IEE in any eligibility, program planning, and placement discussions about FAPE Provide the parent with prior written notice of the team’s decision

  47. Resources 34 CFR § 300.502 Wis. Stat. 115.792(1)(a)(1.) Bulletin 99.02 Bulletin 01.04 OSEP Memorandum RE: Independent Educational Evaluations 9/10/2001

  48. Communicating with Parents in Their Native Language Paul Sherman, School Administration Consultant

  49. Why? IDEA Title VI of the Civil Rights Act of 1964

  50. When? IEP team meetings Required notices “The IEP” Other school to home communication

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