casp – casp - spencer walsh law, pllc · 2021. 4. 16. · (ii) the parents had not received...
TRANSCRIPT
Contact Information
✤ tel. 917-566-2677
✤ Office Location: NYC625 West 57th Street, Suite 1810, New York, NY 10019
✤ Licensed in New York and Connecticut
January 13, 2020
Survey of IDEA Cases after Endrew F.Service Provider’s Role in the Process
“Some men see things as they are and say why. I dream things that never were and say why not.”
–George Bernard Shaw
IDEA 20 U.S.C. 1400 et seq
Burlington/Carter AnalysisTuition Reimbursement when:Prong I - school districts fail to offer FAPE (free appropriate public education);Prong II - the private school is “reasonably calculated” to provide student with an educational benefitProng III - balancing the Equities
Date
IDEAWhat is it and why should I know anything about it?
Tuition Reimbursement
✤ Reimbursement is available for provision of private services, not just tuition
✤ Who? Students 3-21
✤ Why? Denied a FAPE
✤ Children between the ages of 3 and 21, who meet the eligibility criteria in one of thirteen qualifying disabilities and who require special education services because of the disability can qualify for services under IDEA. The categories of disabilities are; autism, deaf/blind, deafness, hearing impaired, mental retardation, multiple disabilities, orthopedic impairment, serious emotional disturbance, specific learning disabilities, speech or language impairment, traumatic brain injury, visual impairment including blindness, and other health impairment. To be eligible, a student must have a disability that adversely affects her or his educational performance and must need special education in order to receive an appropriate education
Burlington and Carter CasesWhat’s It All About?
Burlington School Committee v. Mass. Dept. of Educ., 471 U.S. 359
“it seems clear beyond cavil that “appropriate” relief would include ... placing the child in private school
there must FIRST be a finding of deprivation of FAPE and that the private school is appropriate
• Concerned parents are not required to leave their child in the public school system while this process is pending services/schooling and seek reimbursement
Florence County School District Four v. Carter, 510 U.S. 7 (1993)
private school parents chose was not state approved and did not comport with all IDEA procedures
determined that district failed to offer FAPE
Question - was private school “appropriate” and therefore “reimburseable?”
Yes - private school does not have to meet the same standards as a public school district - why?
✤ Prong 1 - Did the school district offer the student a FAPE?
✤ Prong 2 - Is the unilateral placement the parents have chosen an appropriate educational environment for the student? YOU CAN HELP
✤ Prong 3 - Parents must cooperate with their school district! YOU CAN HELP
Date
Service Providers Can Help Service Providers and the Private Schools are an integral part of success!
Help Parents Avoid the Black Hole
✤Setting Up for Success!
Identify Appropriate Placement
✤ It does not have to be perfect
✤ Meets the primary deficits of the student.
Communicating
✤ Think ahead to litigation and remember that ALL of your communications can be SUBPOENAED
✤ Parents Need to prove they sent certain documents - FAX!
✤ When to email and when not to
Evaluations
✤ Student not doing well in school
✤ Need an evaluation
✤ Evaluator important to the process - specific recommendations - do not use “bad” words - participate in IEP meeting - willing to testify
✤ Student must be identified as a student with a disability requiring “special education”
✤ Or Not … (Forest Grove v. T.A.)
Identification
Identify an Attorney
✤ An attorney who specializes in Special Education Law - not a “dabbler.”
Date
Identify a Quality Evaluator
Refer Student for an IEP
✤ Or request a “reconvene” of the IEP meeting
✤ Parent should request the meeting, not you
✤ What if School District wants to evaluate or observe?
✤ Sharing Information is critical
IEP MeetingWhat to say?What NOT to say?“Appropriate” is the mantra.To participate or not to participate?What is the “least restrictive environment” all about?
Date
Pitfalls to Filling Out Application
Date
When to Sign the ContractAvoiding “pre-determination” and not open to a “public” placement
Date
FAPEWhat is it? Who decides whether FAPE was offered?
Congressional Mandate Least Restrictive Environment
e schooling, or other removal of children with disabilities from the regular edu
Placement in“Least Restrictive Environment”
✤ What is it?
✤ Can a Residential or full time 1:1 ABA program be a student’s “LRE”?
10 BUSINESS Days (not calendar days)
10 Day Notice Before PlacementExigent circumstances and substantiating that
Endrew F. Case
✤ On March 22, 2017 the U.S. Supreme Court issued a unanimous opinion in Endrew F. v. Douglas County School District Re-I, 137 S. Ct. 988:
✤ Analyzed the Scope of FAPE in IDEA
✤ Overtuned 10th Circuit’s decision that Endrew, a child with autism, was only entitled to an educational program that was calculated to provide merely more than “de minimus” educational benefit.
✤ Court determined that “to meet its substantive obligation under the IDEA, a school must offer an IEP that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
✤ Court emphasized the requirement that “every child should have the chance to meet challenging objectives.”
Factual Background of Endrew F.
✤ Endrew attended public school from K-4th grade
✤ Parents rejected 5th grade IEP because it was same as previous IEPs and his progress stalled and made “minimal” progress
✤ Placed him in a privates school that specialized in educating students with autism
✤ Parents LOST at 3 Court levels
✤ Appealed to U.S. Supreme Court
Critical Issue Decided in Endrew F.
✤ Clarified the substantive standard for determining whether a child’s IEP - the centerpiece of each child’s entitlement to FAPE under the IDEA - is sufficient to confer educational benefit on a child with a disability
Critical “Holding” of Endrew F.
✤ The Court held that to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
✤ In clarifying the standard, the Court rejected the “merely more than de minimus (i.e. more than trivial) standard applied by the 10th Circuit.
✤ Court reinforced the requirement that “every child should have the chance to meet challenging objectives.”
What does “de minimus” mean?
✤ "De minimus" is a Latin term which means too trivial or minor to consider.
✤ Federal Courts disagreed over how to determine educational benefit and applied different substantive standards. For example, prior to Endrew F., six U.S. Court of Appeals Circuit Courts applied a "merely more than de minimus" standard when considering educational benefit. One of those courts was the U.S. Court of Appeals for the Tenth Circuit, where Endrew and his parents lived. Therefore, initially the court applied the "de minimus" standard to Endrew's case. This meant that in order to meet its FAPE obligations, the school district only had to show that the child's IEP was designed to provide a child with a disability more than trivial or minor educational benefit.
✤ The U.S. Supreme Court decided that the IDEA promises (demands) more than that
What Does “reasonably calculated” mean?
✤ In determining whether an IEP is reasonably calculated to enable the child to make progress (not regression), the team should consider:
✤ The child’s previous rate of academic growthWhether the child is on track to achieve or exceed grade-level proficiencyany behaviors interfering with the child’s progressand additional information and input provided by the child’s parents
What does “progress appropriate in the light of the child’s circumstances” mean?
✤ The Court stated that the IEP team which must include the child’s parents as Team members, must give “careful consideration to the child’s present levels of achievement, disability and potential for growth.”
Impact?Few Changes
But school districts are not losing cases because of the new Endrew F. standard
About 85 cases were decided by a judge who cited Endrew F. and applied its standard that a
special education program must be "reasonably calculated to enable a child to make progress in
light of the child's circumstances."
Of those, most saw no change in the decision,
and most of those cases, the decision was for the school district.
A few cases, the case was sent back for further evaluation.
In a few cases, the decision was reversed.
In 1 case, a decision that had been in favor of the parents was reversed, with the district
prevailing under the Endrew F. standard.
Impact?
There does seem to be a difference before cases ever make it to court,
Parents are able to cite the case's standards when they are talking with
school staff members and drafting IEPs.
It has focused the discussion much more clearly on what it is we're
supposed to be doing for these kids with disabilities
✤ the case offered a chance to make sure that school personnel are
collaborating with parents and that they are, indeed, creating ambitious
academic standards. Wolfram is particularly mindful of the need to solicit
meaningful parent input in crafting a child's education plan.
Date
Notice Results in HarmWaiting 10 Days would likely result in physical harm to the child
Next Steps
✤ Filing for Due Process
✤ Resolution Period
✤ Settling or Going to Hearing
✤ Now What? Keep sharing progress reports about the student
✤ (d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied—
✤ (1) If—
✤ (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
✤ (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section;
✤ (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or
✤ (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.
✤ (e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement—
✤ (1) Must not be reduced or denied for failure to provide the notice if—
✤ (i) The school prevented the parents from providing the notice;
✤ (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or
✤ (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and
