special education patricia r. andrews andrews & price
TRANSCRIPT
Special Education
Patricia R. Andrews
Andrews & Price
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
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
History
1986 – Smith v. Robinson U.S. Supreme Court Case Held no attorney’s fees available for prevailing
parties under P.L. 94-142
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
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
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
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
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
History
1997-IDEA 1st meaningful substantive changes in 22 years Reauthorization finalized in 2004
Effective July 1, 2005
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
IEP Team
The IEP Team is the decision maker under IDEA Responsible for developing, reviewing and
revising an IEP There are no individual decisions
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
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!
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
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.
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
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.
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
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
“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.
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
Understanding LRE
“Children placed in special education are general education children first” President’s Commission on Excellence in
Special Education
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.
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.
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?
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!
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
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