SPECIAL EDUCATIONLITIGATION AVOIDANCE

Melinda B. Kaufmann, EsquireAssistant Corporation Counsel

City of Hartford550 Main Street

Hartford, CT 06103(860) 757-9700

kaufm001@hartford.gov

STATUTORY AND REGULATORY AUTHORITIES

– Federal Authorities• Individuals With Disabilities Education Act

(IDEA), 20 U.S. C. § 1400 et al. Regulations are located at 34 C.F.R. Part 300 and 303. – Connecticut and other states that elect to receive funds

under Part B of the IDEA must provide a “free appropriate public education” to eligible children with disabilities between the ages of 3 and 21 in accordance with the federal IDEA statutes and regulations. It further provides for early intervention services for infants and toddler.

– State regulations may be more inclusive than the federal regulations, but may not be less inclusive.

• Section 504 of the Rehabilitation Act of 1973 (Section 504); 29 U.S.C. 794, as amended. Regulations are located at 45 C.F.R. Part 104.– This statute prohibits discrimination against an

“otherwise handicapped person” by any recipient of federal funds, including the state Department of Education, public school districts and intermediate units.

• The Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12131-12165 (1994). Regulations are located at 28 C.F.R. 35-101-190.

– Title II of the ADA, in conjunction with Section 504, governs the accessibility of public schools in terms of facilities and services. Because the requirements of the two laws are almost identical, as they relate to the educational needs of school-age students, the ADA will not be discussed separately in these materials.

– State Authority

• Connecticut General Statutes §10-76– Connecticut State Regulations

• Other Connecticut Authority– Hearing Officer decisions– Opinions from the State Department of Education

CHILD FIND

– Who is eligible for special education services under the IDEA?• A child with a disability (ages 3 to 21) who has a

physical, mental or emotional impairment and who, by reason thereof, needs special education and related services. 20 U.S.C. § 1401(3).

• Specifically includes: a child who has mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, other health impairment, specific learning disability, deaf-blindness, or multiple disability, who, by reason thereof, needs special education and related services.

• A child aged 3 through 9, at the discretion of the State and local education agency, who is experiencing developmental delays, as defined by the State, in the areas of physical, cognitive, communication, social, emotional or adaptive development and who, by reason thereof, needs specially designed instruction and related services.

20 U.S.C. § 1401(3).

• In Connecticut, a child is eligible for special education services through the end of the year in which the child turns 21. Because the school year is defined as commencing on July 1, a student who turns 21 on July 1 or later is eligible for services through the entire school year.

• Connecticut also defines a student who is pregnant as being eligible for special education and related services. Ct. St. Reg. §10-76d-2(l)

District’s Duty to Identity Eligible Children

• IDEA– School districts have an affirmative duty to

locate and identify children in need of special education services. 20 U.S.C.

§ 1412(3)(A).• Includes the duty to locate children who do not

attend public schools.

• Section 504– Requires all federal recipients to notify

participants that they do not discriminate on the basis of disability. 34 C.F.R. § 104.8(a).

– Each recipient must undertake the identification and location of every qualified person with disabilities in the entity’s jurisdiction who is not receiving a public education and must notify the person’s parent/guardian of the duty to provide a free appropriate education.

• Ct. St. Reg. 10-76d-7 mandates prompt referral to a PPT of all children who have been suspended repeatedly or whose behavior, attendance or progress in school is considered unsatisfactory or at a marginal level of acceptance.

The evaluation process

• Informed parental consent must be obtained prior to conducting an initial evaluation or re-evaluation. 20 U.S.C. § 1414(a)(1)(D); 20 U.S.C. § 1414(c)(3); 34 C.F.R. §300.300.

– Informed consent for a re-evaluation may not need to be provided if the local educational agency can show that it took reasonable measures to obtain consent and the parents failed to respond. 20 U.S.C. § 1414(c)(3).

• Who may request an evaluation– Parent or school personnel– Under state law, referrals for special education may also be

made by a physician, clinic or social worker. Ct. St. Reg. 10-76d-7.

• Timeline for initial evaluation

– IDEA provides 60 calendar days of receiving parental consent for the evaluation 34 C.F.R. §300.301(c)

– Timeline does not apply if parent repeatedly fails or refuses to produce the child

– State law provides that evaluation and program implementation must be conducted within 45 school days of the referral or notice. Ct. St. Reg. 10-76d-13.

• Reevaluation 34 C.F.R. §300.303

– May occur whenever parent or school requests it

– Unless both sides agree, may not be required to evaluate more than one time in a year

– Under the IDEA, re-evaluations must be conducted whenever conditions warrant it, but no less than once every three years, unless both sides agree it is not necessary. 34 C.F.R. §300.303(b)(2).

• Parent’s refusal to permit evaluation

– For initial consent for evaluation only, the District has a right to request due process to pursue the initial evaluation. 34 C.F.R. §300.300(a)(3)(i). The District is not considered to have violated child find if it does not do so.

• Independent Educational Evaluations

– Parents have a right to obtain an independent educational evaluation at public expense if they disagree with an evaluation done by the school.

– The school may initiate a due process hearing to show the school's evaluation is appropriate.

– If the school evaluation is found to be appropriate, the parents may still present the private evaluation, but at their own expense.

THE IEP PROCESS

The Determination of Eligibility

• What must be done– The District has an obligation to explore

every area of suspected disability.– A variety of assessment tools must be used

to gather information, including information from the parents. 34 C.F.R. §§ 300.304, 300.305.• No single test or procedure should be used as

the sole criterion to determine whether the child is a child with a disability.

• The team must determine:– Whether the child is a child with a disability (or

continues to have a disability if this is a reevaluation);

– The present levels of performance;– The present educational needs of the child;– Whether the child needs (or continues to

need) special education and related services;

– What modifications does the child need to participate in the special education, related services or general curriculum?

The IEP

• Parental notification of PPT meeting must be made at least 5 days prior to the meeting

• The District must notify parents five days before proposing to, or refusing to, initiate or change the child’s identification, evaluation or placement.

Ct. St. Reg. 10-76d-8.

• Composition of the IEP Team: 20 U.S.C.

§ 1414(d)(B); 34 C.F.R. §300.321.– The parents of the child;– At least one current regular education teacher

of the child;• If the child is or may be participating in the regular

education environment.• If the student does not have a regular education

teacher, the team should include a regular education teacher with whom the child is likely to be placed for any portion of the day.

– At least one special education teacher;– A representative of the local educational agency

who:• Is qualified to provide, or supervise, the provision of

special education;• Is knowledgeable about the availability of school

resources.

– An individual who can interpret the evaluation results (this could be the psychologist who administered the tests);

– Any other person with knowledge or special expertise about the child invited by the parent or the school;

– The student, whenever appropriate; and

– With parental consent, the District must invite a representative of any participating .agency that is likely to be responsible for providing or paying for transitional services.

– Members of the IEP team may be excused if the parent and district agree in writing.

– NOTE – Connecticut law requires that the PPT team consist of representatives of the teaching, administrative and pupil personnel staff. Ct. St. Reg. §10-76a-1(p).

• What must be included on the IEP? 20 U.S.C. § 1414(d)(A), 34 C.F.R. §300.320.

• A statement of the child’s present levels of education and a statement of how the child’s disability affects his/her involvement and progress in the general curriculum.

• A statement of measurable annual goals;

• A statement of specially-designed instruction and related services and supplementary aids and services to be provided to the child and a statement of program modifications or supports for school personnel that is designed to enable the child to:

– Advance appropriately toward attaining the annual goals;– To enable the child to be involved in and progress in the

general curriculum;– To enable the child to participate in extracurricular and

other nonacademic activities.

• Related services including the frequency, duration, mode (direct or consultative) and grouping (individual or group) of those services.

• Modifications or supports for school personnel that will be provided for the child.

• An explanation of the extent, if any, to which the child will not participate with non-disabled children in the regular classroom.

• Any modifications needed in the administration of State or district-wide assessments of student achievement.

• Beginning not later than the first IEP in effect when the child turns 16, the IEP must include transition services

• How the child’s progress will be measured and how this information will be communicated to the parents.

• It is very important that all people working with the child have access to the IEP and are knowledgeable about what is in it.

– Includes regular education teacher, special education teacher, related service providers, any other service provider who is responsible for its implementation.

What is a Free Appropriate Public Education (FAPE)?

• What does “free” mean?– At public expense.– May, with parents’ consent, use public or

private insurance to pay for some or all of the services provided.

• What does “appropriate” mean? – There is no clear cut definition.– This is what most due process hearings are

about.

• In some cases, a procedural violation is enough for a hearing officer to find that the district did not provide FAPE. The hearing officer may find this if the procedural violation:

– it impedes the right of the child to FAPE, – it significantly impeded the parent’s right to

participating in the IEP team process, or – it caused a deprivation of educational benefit. 20

U.S.C. §1415(f)(3)(E).– At least one Connecticut Court found that the district

denied the child FAPE when it failed to ensure the parent’s attendance at the PPT meeting to plan for the upcoming school year. Mr. and Mrs. M. v. Ridgefield Board of Education (D. Conn. 2007).

• A student's failure to make progress does not mean the IEP was inappropriate at the time it was drafted.

– A failure to revise an IEP when a student is not making progress would be a violation

• The availability of a better or optimal program also does not make the IEP inappropriate.

LEASTRESTRICTIVE

ENVIRONMENT

• The IDEA mandates the education of disabled students in the least restrictive environment appropriate to meet their needs. 20 U.S.C. § 1412(a)(5) 34 C.F.R. § 300.115.

– School Districts are required to provide a continuum of placements for students with disabilities. 34 C.F.R.§ 300.115.

– It also requires that disabled students be educated with their non-disabled peers to the maximum extent possible. 20 U.S.C. § 1412(a)(5).

– Nonacademic and extracurricular services and activities must also be provided in the least restrictive environment. 34 C.F.R. § 300.117.

• P. v. Newington School District, 546 F.3d 111 (2d Cir. 2008) , established a two-part test to determine whether a placement is the LRE:

– The court must determine whether education in the regular classroom, with supplementary aids and services, can be achieved satisfactorily.

• What steps has the school taken to try to include the child in the regular classroom.

• Compare the educational benefits the child would receive in the regular classroom against the benefits the child would receive in the segregated classroom.

• The negative effect inclusion may have on the other children in the regular classroom.

– If the court finds that placement outside the regular classroom is necessary, then the court must decide whether the school has mainstreamed the child to the maximum extent appropriate (i.e. has the school made efforts to include the child in school programs with non-disabled children whenever possible).

DISCIPLINE

• Special rules for disciplining

eligible students– The IDEA

• The IDEA requires that the IEP team shall “in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, strategies and supports to address that behavior.” 20 U.S.C.

§ 1414(d)(3)(B)(i).

• Exclusions of eligible students

– The student may be excluded following the procedures for regular education students if the exclusion is not a change in placement.

What is a change in placement?

• Definition under IDEA/law:– Any exclusion that is longer than 10 consecutive days, 34 C.F.R.

§ 300.530(b)(1).• additional removals for up to 10 days are allowed if they do not

constitute a pattern, 34 C.F.R. § 300.530(b)(2).

– 34 C.F.R. §300.536 suggests that to determine whether a series of exclusions is a change in placement, you should consider:

• Whether the behavior for which suspension is being considered is substantially similar to the conduct that resulted in earlier suspension;

• The length of each removal ad that total time the student have been removed;

• The proximity of the removals to each other.;

• After the 10th day of removal, educational services must be provided.

34 C.F.R. § 300.530(d)(4).

• In order to expel a student for longer than the above, a manifestation determination must be made to determine whether the behavior was the manifestation of the student’s disability, 34 C.F.R. § 300.530(e).

• Within 10 school days after the date on which the decision to take action is made, the IEP team and other qualified personnel must convene to make a manifestation determination.

• Must find that the behavior was a manifestation of the disability if:

– The conduct in question was caused by, or had a direct and substantial relationship to the child’s disability; or

– If the conduct in question was the direct result of the LEA’s failure to implement the IEP.

• If the behavior is a manifestation of the exceptionality, the student cannot be expelled.

– The IEP must be revised to remedy any deficiencies; and

– A Behavior Intervention Plan (“BIP”) must be put in place (or reviewed if already in place).

• If behavior is not found to be a manifestation of the exceptionality, the student may be expelled, but the District must continue to provide FAPE.

– The District must insure that the student’s special education and disciplinary records are transmitted for consideration to those responsible for making the final determination regarding the disciplinary action.

– The parents have a right to an expedited due process hearing if they disagree with the manifestation determination.

• The placement of child during pendency of the challenge is:

– If the child has already been placed in an interim alternative educational setting and then the parents challenge the manifestation determination, the child remains in the interim setting pending the decision of the hearing officer or the expiration of the time period that the child has been assigned to the placement;

– A student who does not qualify for 45-day placement under the drugs or weapons criteria or pursuant to a hearing officer decision stays put in current placement during the appeal.

• Weapons, drugs, infliction of serious bodily injury - the exception, 20 U.S.C. § 1415(k)

– The school may unilaterally change the placement of a student for up to 45 school days if the student carries a weapon to school or a school function and/or knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school, on school premises or at a school function, the student has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function.

• weapon means “a weapon, device, instrument, material or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1/2 inches in length.” 18 U.S.C. § 930; 20 U.S.C. § 1415(k).

– illegal drug - illegal drug means controlled substance unless the controlled substance is legally possessed or used under supervision of a licensed health care professional or used under any other legal authority. 20 U.S.C. § 1415(k).

– controlled substances are listed at

21 U.S.C. § 812(c) and include: amphetamine, anabolic steroids, heroin, marijuana, mescaline, methadone, opium, peyote, and phenobarbital.

• Serious bodily injury – means an injury which involves (A) a substantial risk of death; (B) extreme physical pain, (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ or mental faculty. 18 USC §1365

• Notification to the parent must be made not later than the date on which the decision to take disciplinary action is made.

• Placement for alternative education is set by the IEP team. 34 C.F.R. §300.531

• The School can ask a hearing officer to change the placement if it believes the child is dangerous to himself or others. 20 U.S.C. § 1415(k)(3).

– The hearing officer can change the placement for up to 45 school days.

– The District may make successive requests for 45 day placements.

• “Should have known” students,

34 C.F.R. § 300.534.– Students who are not identified as eligible

students under the IDEA may still be protected by it if the school district “should have known” about a disability that would qualify them under the IDEA.

• The standard under the IDEA:– The parent expressed concern in writing to

supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services;

– The parent requested an evaluation of the child;

– The teacher of the child, or other personnel of the LEA, expressed specific concern about a pattern of behavior demonstrated by the child directly to the director of special education or to other supervisory personnel.

– The district will not be deemed to have known if:

• The parent has not allowed an evaluation;• Has refused services, or • Has been evaluated and found not to be a child

with a disability.

• If no deemed knowledge, the District can discipline the student the same way as a regular education student. If the parents request an evaluation of child, it must be handled in an expedited manner.

– Placement pending the evaluation is the educational placement determined by the school authorities.

– Services - if evaluation and information from the parents establishes that the child is a child with a disability, the school must provide special education services in accordance with IDEA.

• Referral to Law Enforcement Agency

– The District may report crimes to law enforcement. 34 C.F.R. § 300.535.

• The District must make sure that the agency gets a copy of the special education and disciplinary records of the child, consistent with FERPA.

• FERPA requires signed and dated parental consent to transmit personally identifiable information from an educational record unless it falls within one of FERPA's limited exceptions.

• Services Required in Alternative Setting

– Must allow the child to continue to participate in the general curriculum and to continue to receive those services and modifications, including those described in the child’s current IEP, that will enable the child to meet the goals set out in the IEP and must include services and modifications to address behavior.

REMEDIES

• Compensatory Education– Hearing officers and the Special Education

Appeals Panel may award compensatory education where appropriate.• NOTE – may also be awarded through the state

complaint procedures

– Case law has indicated that may be required to provide compensatory education past a student’s 21st birthday.

• Reimbursement– Independent hearing officers can order

reimbursements– Reimbursements may be for items such as:

• Tuition to private school;• Money spent by the parents procuring private

services or tutors; and• Money spent by the parents on private

evaluations.

• Tuition Reimbursement.– If the school offers FAPE but the parent opts

to place the child in a private school, the school is not obligated to pay for the private placement.

– Reimbursement for private school tuition paid by parents who have rejected the district’s proposed placement and who ultimately prevail on the issue of FAPE is an appropriate remedy under the IDEA. Burlington School Committee v. Department of Education of Massachusetts, 105 S. Ct. 1996 (1985).

– Reimbursement can be for the placement of a child in a non-approved private school - even one that did not comply with the IDEA regulations. Florence County School District 4 v. Shannon Carter, 114 S. Ct. 361 (1993).

– If a parent unilaterally places his/her child at a private placement in order to get reimbursement, it must be determined that:

• The program from the District was not designed to give FAPE, and

• The private placement was appropriate.• It must have individualized instruction and be designed to

meet the needs of the child.• It does not have to use an IEP or have state-certified

teachers.

• Parent responsibility:– Parents must notify the IEP team at the

most recent IEP team meeting that they are rejecting placement, what their concerns are about the proposed program and their intent to enroll the child at a private school at public expense OR advise the school of the same in writing 10 business days in advance of removing the child from the public school.

– If, prior to the removal, the school properly requested the opportunity to evaluate/reevaluate the child, the parent must make the child available for evaluation.

– If the above is not done, reimbursement for private school tuition may be denied or reduced.

– Some exceptions to this are:– The parents are illiterate or cannot write in English;– Compliance would cause harm to the child;– The school prevented the parent from providing

notice; or– The parents did not receive notice of their rights.

• Attorneys fees– The court may, in its discretion, award reasonable

attorney fees to the parents of a child with a disability who is the prevailing party. 42 U.S.C. § 1415(1)(3)(B).

– Attorney’s fees may not be awarded for any meeting of the IEP team unless such meeting is convened as a result of an administrative proceeding or judicial action.

– A school district may be entitled to attorneys fees for defending against a frivolous due process request

MOST COMMON IEP VIOLATIONS

• The key to a defensible IEP is that anybody picking up the IEP should be able to understand what is planned for and expected of the child.

• Not providing the present educational levels.– These need to be provided both for academic

and social/emotional levels as appropriate.

• Goals not sufficiently clear– inappropriate goal: “Johnny will improve in

math”– Okay goal: “Johnny will master the fifth grade

math skills with 80% accuracy as measured by teacher created tests.”

– Better goal:“Johnny will do three-digit division with 80% accuracy as measured by book tests.”

*Goals should always track the present education levels provided above.

• IEP identifies needs in the needs section that are not addressed within the IEP

• Evaluation reports identify needs that are not addressed in the IEP.

• IEP addresses behavioral issues, but there is not a behavior plan in place

• The IEP fails to state when and where services will be provided.

• for each service you should provide– whether it is individual or group– duration– how many times per week– is it direct or consultative

• Having the IEP already written before the IEP conference

• Not specifying modifications and accommodations to be made in the regular classroom– failing to train staff adequately to provide the

modifications– failing to state who will be providing the

modifications

• Improper PPT team composition

• Failing to meet the required timelines

IEP IMPLEMENTATION ISSUES

• Make sure that all staff with responsibility for the student has access to the student’s IEP.– It is suggested that each teacher sign a form

indicating that they have seen and/or received a copy of the student’s IEP at the beginning of the year.

• Don’t allow staff to refuse to implement provisions in the IEP because it doesn’t fit their teaching style, etc.

• Make sure staff is adequately trained to implement the IEP.

• Makes sure you are actually delivering any services and providing any accommodations/modification that are provided for in the IEP.– For example, if the IEP says the student

needs a 1-1 paraprofessional, you have violated the law if you reassign the student’s paraprofessional to substitute teach or assist other students.

General Litigation Avoidance

• Beware of e-mail communications

• Contact Central Office or me if a case is in due process and you are contacted by the parent’s or child’s attorney

• Contact your supervisor and me immediately if you are served with a subpoena or other court papers