Special Education

1
Special Education

• Patricia R. Andrews
• Andrews Price

2
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

3
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

4
History

• 1986 Smith v. Robinson
• U.S. Supreme Court Case
• Held no attorneys fees available for prevailing
  parties under P.L. 94-142

5
History

• 1988 Protection for All Handicapped Children
  Act
• 94-142 amended to provide for attorneys fees for
  prevailing party
• Only for parents
• No meaningful substantive changes
• Parent lawyers now come on scene
• More complex and longer hearings

6
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

7
Major cases

• Oberti
• Down Syndrome child requesting inclusion in the
  regular education environment
• IDEA adopts the Courts 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

8
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

9
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

10
History

• 1997-IDEA
• 1st meaningful substantive changes in 22 years
• Reauthorization finalized in 2004
• Effective July 1, 2005

11
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

12
IEP Team

• The IEP Team is the decision maker under IDEA
• Responsible for developing, reviewing and
  revising an IEP
• There are no individual decisions

13
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

14
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
  members attendance is not necessary because the
  members area of the curriculum or related
  services is not being modified or discussed at
  the meeting
• DOCUMENT!

15
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
  members 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

16
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.

17
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

18
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.

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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

20
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

21
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.

22
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

23
Understanding LRE

• Children placed in special education are general
  education children first
• Presidents Commission on Excellence in Special
  Education

24
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.

25
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.

26
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?

27
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!

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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

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Why Should I Care?

• Avoid problems by following IDEAs 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