ILLINOIS COUNCIL FOR CHILDREN WITH BEHAVIOR DISORDERS

2007 WINTER DRIVE-IN CONFERENCEFebruary 24, 20071:00 – 2:30 p.m.

SPECIAL EDUCATION LEGAL UPDATE: WHAT SPECIAL EDUCATORS NEED TO

KNOW ABOUT RECENT CHANGES IN THE LAW

Lara A. ClearyWhitted Cleary & Takiff LLC

3000 Dundee # 303Northbrook, IL 60062Voice: 847-564-8662Facs: 847-564-8419

Email: Lcleary@wct-law.com

AGENDA

I. Introduction and Overview

A. What I’ll coverB. Explanation of MaterialsC. The Rowley Case – It’s Still Good Law

a. The two questions asked by all reviewing courtsb. The standard for special education: Do we maximize?

II. Major Changes Resulting From New IDEIA and New Federal Regulations

A. Procedural Issues a. Parental Consent

i. Consent for Evaluationsii. Consent For Services

b. Procedural Safeguards Noticec. Children Graduating/Aging Out of System – New

Requirementsd. Private Schools – Child Find and Servicese. Children Not Yet Identified: Rights when the District

Reasonably knew of a Disability

B. IEPs a. The Team

i. Conducting Meetings Without Certain Membersii. The Role of the General Education Teacher

b. Present Levels of Performancec. Writing Goals and Objectivesd. Reporting Progress Toward Goalse. Transition Servicesf. Alternative Methods For IEP Meetingsg. LD Eligibility

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C. Changes in Due Process Procedures a. Due Process Complaint Noticeb. Response to Due Process Complaintc. Convening Resolution Sessionsd. Statute of Limitationse. Attorneys Fees

D. Student Discipline a. Changes in Manifestation Determination Reviewsb. Legal Requirements for FBA/BIPc. Children Not Yet Eligible For Special Education – Special

Considerationsd. Changes in 45 Day Interim Alternative Educational Setting

Placements

III. Case Law Update

A. Supreme CourtB. Lower Courts

IV. Windup/Questions – With Bev Johns

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TABLE OF CONTENTS

1. COVER PAGE……………………………………………………1

2. AGENDA……………………………………………………….…2-3

3. TABLE OF CONTENTS………………………………….....…..4

4. ACRONYM QUIZ……………………………………………….5

5. ROWLEY MEMO……………………………………………......6-13

6. 2004 IDEA REAUTHORIZATION……………………………..14-32

7. RECENT COURT DECISIONS………………………………….33-39

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PRETEST YOUR KNOWLEDGE:ACRONYM QUIZ

1. ADA –

2. IDEA –

3. 504 –

4. IEP –

5. FAPE –

6. LRE –

7. CSE –

8. BIP -

9. FBA –

10. REGS –

11. RTI –

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Whitted, Cleary & Takiff LLC3000 W. Dundee Road, Suite 303

Northbrook, IL 60062(847) 564-8662 (847) 564-8419 FAX

Email: Lcleary@wct-law.com

THE ROWLEY CASE: WHAT DOES IT REALLY MEAN?6

THE ROWLEY CASE:

WHAT DOES IT

REALLY MEAN?

INTRODUCTION

The case of Rowley v. Hendrick Hudson School District 1 was the U.S. Supreme Court's first interpretation of what was then called the Education for All Handicapped Children Act (now the Individuals with Disabilities Education Act, “IDEA”). This important decision is required reading for anyone working in special education. The case concerned a hearing impaired girl named Amy Rowley, who was a student at the Furnace Woods School in Hendrick Hudson Central School District, Peekskill, N.Y. Amy had minimal residual hearing and was an excellent lip reader. During the year before she began attending school, a meeting between her parents and the school administrator resulted in a decision to place her in a regular kindergarten class. Several administrators prepared for Amy's arrival by attending a course in sign language interpretation, and a teletype machine was installed in the principal's office to facilitate communication with her parents, who were also deaf. At the end of the trial placement it was determined that Amy should remain in the kindergarten class, but that she should be provided with an FM transmitter. Amy successfully completed her kindergarten year.

As required by the Act, an IEP was prepared for Amy during the fall of her first grade year. The IEP provided that Amy should be educated in a regular classroom, should continue to use the FM device, and should receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts of the IEP, but insisted that Amy also be provided a qualified sign language interpreter in all her academic classes in lieu of the assistance proposed in other parts of the IEP. Such an interpreter had been placed in Amy's kindergarten class for a two-week experimental period, but it was reported that Amy had no need for this service. This conclusion was reached after consultation with the school district's “Committee on the Handicapped,” which had received expert evidence from Amy's parents on the importance of an interpreter. The Committee also received information from Amy's teacher and other persons familiar with her academic and social progress, and visited a class for the deaf. When their request for an interpreter was denied, the Rowleys demanded and received an administrative hearing. After receiving evidence from both sides, the hearing officer agreed with the administrators' determination that an interpreter was not necessary because "Amy was achieving educationally, academically, and socially" without such assistance. The examiner's decision was affirmed on appeal by the New York Commissioner of Education. The Rowleys then brought an action in the United State District Court for the Southern District of New York, claiming that the administrators' denial of the sign language interpreter constituted a denial of the "free appropriate public education" guaranteed by the Act. (Excerpt from the court's own description at 458 US 176 at 183)

The holdings in the Rowley case have become the standard of analysis for every subsequent special education case arising in the Federal and State courts. Consequently, a working knowledge of the fundamental analysis developed by the Supreme Court justices is important when evaluating any special education matter. In this paper, this analysis will be examined in detail. Any practitioner or educator looking at a special education file should keep this analysis in mind at all times. Since all other courts do this as well, the questions asked by the Rowley court are instructive even today, well over twenty years later.

The Rowley Questions:

These are best presented in the form originally developed by the Supreme Court:

Therefore, a court's inquiry in suits brought under §1415(e)(2) is

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twofold. First, has the State complied with the procedures set forth in the Act? [FN27] And second, is the individualized education program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? [FN28] If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more. (458 US 176, 204) (Emphasis added.)

As the analysis goes, if the school district has not complied with the Federally mandated procedures, and if the violation resulted in some form of significant harm to the student, all educational decision making from the point of the violation forward is suspect. What this means is that judges will be more likely to step in and substitute their judgment for that of the educators, given a significant procedural violation. If, on the other hand, the school district has complied with all of the procedures in the Act, then the analysis requires asking the second "Rowley question."

The Supreme Court, however, first examines the priorities assigned by Congress to procedural requirements:

But although we find that this grant of authority is broader than claimed by petitioners, we think the fact that it is found in §1415, which is entitled "Procedural Safeguards," is not without significance. When the elaborate and highly specific procedural safeguards embodied in §1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e.g. §§1415(a)-(d), as it did upon the measurement of the resulting IEP against a substantive standard. We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP. (458 US 176, 204; emphasis added.)

"Significant" Violations:

A recurrent problem is whether a procedural violation under Rowley is "significant." In 2002, a district was held (at 38 IDELR 85) to have violated "several" procedural requirements of the IDEA but even so, the student received all of his IEP services. The court therefore concluded that there was no resulting denial of a free appropriate public education under IDEA. The procedural violation, therefore, must actually result in some harm to the student before it becomes "significant."

Adverse Educational Impact:

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Another recurrent problem is the issue of a student passing from grade to grade and still remaining eligible for services. Amy Rowley herself got good grades, and the court held that she was not entitled to a sign language interpreter as requested by her parents. This did not mean that she was ineligible for other special education services, as she was still hearing impaired and met the definitional requirements. In fact, the court itself in Rowley said:

We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to this situation. (458 US 176 at 202; emphasis added.)

In the Cornwall case (17 EHLR 10239/1991) the court held that there was a significant impact on educational performance even though the child had not failed any courses. In Yankton (93 F. 3rd 1369, 8th Cir. 1996), a cerebral palsy child was getting high grades but was still entitled to specially designed instruction and related services. In Schoenfield (8th Cir. 1998) the court held that academic performance at or above age level does not necessarily mean a child is not "disabled," or that the education satisfied the standard of appropriateness under Rowley.

It can be seen, then, that while Rowley holds that passage from grade to grade is one important indicator of whether an educational benefit has been conferred, it is not the sole criterion but should be "in the mix" of other considerations. It is a fatal mistake for a school district to declare that a child is ineligible solely because he or she is receiving passing grades.

Educational Benefits:

The court's own language serves to explain this prong of the Rowley test with the greatest skill:

Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receiveno benefit from education. The statutory definition of "free appropriate public education," in addition to requiring the States to provide each child with "specially designed instruction," expressly requires the provision of "such…supportive services…as may be required to assist a handicapped child to benefit from special education." §1401(17). We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. [FN23] (458 US 176 at 200, emphasis added).

And this analysis is extended to the provision of a FAPE for eligible children:

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When the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a "free appropriate public education," we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the grade levels used in the State's regular education, and must comport with the child's IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. [FN26] (458 US 176 at 202, emphasis added.)

The question of how to deal with students who are not capable of obtaining passing grades under any circumstances is not clearly answered by the Supreme Court in Rowley. However, the footnotes make reference to the required full continuum of alternative settings, and the need for some students to be placed in settings other than the mainstream. It is clear, especially in light of decisional case law subsequent to Rowley, that when a child is placed in a more restrictive setting, the decision must be driven by the unique need of the student and not by administrative convenience or other factors (see, e.g., Beth B. v. Mark VanClay and School District #65 (Federal Appellate Case Decided March 5, 2002) [2002 WL 341017, 36 IDELR 121 (7th Cir.).

Selected Case Footnotes

(Emphasis is Added)

(73 L.Ed.2d 710) 25. We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a "free appropriate public education." In this case, however, we find Amy's academic progress, when considered with the special services and professional consideration accorded by the Furnace Woods School administrators, to be dispositive.

But see footnote 23!

(73 L.Ed.2d 712)

28. When the handicapped child is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit. See Part III, supra.

This note is from the Dissent: Justices White, Brennan, and Marshall

1. The Court's opinion relies heavily on the statement, which occurs throughout the legislative history, that, at the time of enactment, one million of the roughly eight million handicapped children in the United States were excluded entirely from the public school system and more than half were receiving an inappropriate education. See, e.g., ante, at 189, 195, 196-197, 73 L Ed 2d, at 701, 705, 706. But this statement was often likened to statements urging equal educational opportunity. See, e.g., 121 Cong Rec 19502 (1975) (remarks of Sen. Cranston); id., at

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23702 (remarks of Rep. Brademas). That is, Congress wanted not only to bring handicapped children into the schoolhouse, but also to benefit them once they had entered.

(Footnote 23)

THIS NOTE devotes substantial space and time to the concept of self-sufficiency and this should be pointed out to any hearing officer, administrator, or attorney who insists that the opinion stands for the rigid proposition that "any" satisfactory grade record will do. Moreover, the presence of 'relaxed' grading standards (i.e., giving passing grades just for trying) does not assist the pupil in the permanent and long-range development of self-sufficiency skills.

"With proper education services, many would be able to become productive citizens, contributing to society instead of being forced to remain burdens. Others, through such services, would increase their independence, thus reducing their dependence on society." S. Rep, at 9. See also HR Rep, at 11. Similarly, one of the principal Senate sponsors of the Act stated that "providing appropriate educational services now means that many of these individuals will be able to become a contributing part of our society, and they will not have to depend on subsistence payments from public funds." 121 Cong Rec 19492 (1975) (remarks of Sen. Williams). See also id., at 25541 (remarks of Rep. Harkin); id., at 37024-37025 (remarks of Rep. Brademas); id., at 37027 (remarks of Rep. Gude); id., at 37410 (remarks of Sen. Randolph); id., at 37416 (remarks of Sen. Williams).

The desire to provide handicapped children with an attainable degree of personal independence obviously anticipated that state educational programs would confer educational benefits upon such children. But at the same time, the goal of achieving some degrees of self-sufficiency in most cases is a good deal more modest than the potential maximizing goal adopted by the lower courts.

Despite its frequent mention, we cannot conclude, as did the dissent in the Court of Appeals, that self-sufficiency was itself the substantive standard, which Congress imposed upon the States. Because many mildly handicapped children will achieve self-sufficiency without state assistance while personal independence for severely handicapped may be an unreachable goal, "self-sufficiency" as a substantive standard is at once an inadequate protection and an overly demanding requirement. We thus view these references in the legislative history as evidence of Congress' intention that the services provided handicapped children be educationally beneficial, whatever the nature or severity of their handicap.

(Footnote 21)

The second recognition herein that some "mainstream" settings, while less restrictive, are simply not appropriate for the education of some handicapped children. Again in opposition to reflexive LRE and "full inclusion" arguments used by management attorneys.

The use of "appropriate" in the language of the Act, although by no means definitive, suggests that Congress used the word as much to describe the settings in which handicapped children should be educated as to prescribe the substantive content or supportive services of their education. For example, § 1412(5) requires that handicapped children be educated in classrooms with non-handicapped children "to the maximum extent appropriate." Similarly, § 1401(19) provides that, "whenever appropriate," handicapped children should attend and participate in the meeting at which their IEP is drafted. In addition, the definition of "free appropriate public education" itself states that instruction given handicapped children should be at an "appropriate preschool, elementary, or secondary school" level. § 1401(18)(C). The Act's use of the word "appropriate" thus seems to reflect Congress' recognition that some settings simply are not suitable environments for the participation of some handicapped children.

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73 L.Ed.2d 708 – from the body of the opinion:

This Note is one of the most significant parts of the opinion, as it explains what the Court IS and IS NOT deciding. While "self-sufficiency" is not the exclusive factor, it is an important factor in determining if an educational benefit has been "conferred."

(73 L.Ed.2d 709)

We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. 23

23. This view is supported by the congressional intention, frequently expressed in the legislative history that handicapped children be enabled to achieve a reasonable degree of self-sufficiency. After referring to statistics showing that many handicapped children were excluded from public education, the Senate Report states:

"The long range implications of these statistics are that public agencies and taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain such persons as dependents and in a minimally acceptable lifestyle."

The language of "educational benefit." The root of this language is not just that the child must receive "any" benefit: the benefit must be "received" within the context of the child's unique needs, not the needs of the agency. The origin of the language is explained in this note – as a way of providing handicapped children with an inviolable access to

educational services, which provision this court, reads very strictly (see Honig v. Doe, 484 U.S. 305, 308 (1988)).

(73 L.Ed.2d 704)

15. The only substantive standard, which can be implied from these cases, comports with the standard implicit in the Act. PARC states that each child must receive "access to a free public program of education and training appropriate to his learning capabilities," 334 F. Supp, at 1258 (emphasis added), and that further state action is required when it appears that "the needs of the mentally retarded child are not being adequately served," id., at 1266 (emphasis added). Mills also speaks in terms of

"adequate" educational services, 348 F Supp, at 878, and sets a realistic standard of providing some educational services to each child when every need cannot be met.

The inadequacies of the District of Columbia Public School System whether occasioned by insufficient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the 'exceptional' or handicapped child than on the normal child." Id., at 876.

While the EHA does not mandate 'maximization' of benefits under this decision, note that settled decisional case law provides that states which choose to grant greater rights than the Federal mandate requires must do so uniformly – and the state standard will in such cases prevail.

(73 L.Ed.2d 706)

21. In seeking to read more into the Act than its language or legislative history will permit, the United States focuses upon the word "appropriate," arguing that "the statutory definitions do not adequately explain what [it means]." Brief for United States as Amicus Curiae 13. Whatever Congress meant by an "appropriate" education, it is clear that it did not mean a potential maximizing education.

The term as used in reference to educating the handicapped appears to have originated in the PARC decision, where the District Court required that handicapped children be provided with "education and training appropriate to [their] learning capabilities." 334 F Supp, at 1258. The word appears again in the Mills decision, the District Court at one point referring to the need for "an appropriate education program," 348 F Supp, at 879, and at another point speaking of a "suitable publicly supported education," id., at 878. Both cases also refer to the need for an "adequate" education. See 334 F Supp, at 1266; 348 F Supp, at 878.

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Independence and Self Sufficiency:At 20 U.S.C. 1400 (c)5(E)ii, it is indicated that 20 years of research under the old IDEA

has demonstrated that training people through high quality intensive professional development ensures that these personnel have the skills to enable children to be prepared to lead productive, independent, adult lives to the maximum extent possible. This language in the "purposes" clause of Rowley appears to provide a potential argument that the Rowley standard of requiring districts to provide "adequate" services might have been elevated. In addition, at Section 1400(d), under purposes (1)A, one of the purposes of the IDEA is to enable individuals to meet their unique needs and prepare them for employment and independent living. This is reminiscent of the footnote discussion in the Rowley case. It is clear that one of the purposes of the Act is to prepare students for independence to the extent that their abilities permit.

Conclusion:

Special educators should take special notice of the Rowley case, as it is still good law and it acts as the blueprint for all cases to follow. The two Rowley questions emphasizing procedural compliance and the benefits of the IEP should be committed to memory. Finally, the focus of the decision on what is “appropriate” for special education students should be given special emphasis, especially in light of the social emphasis on so-called “inclusion” in recent years.

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To: Whitted Cleary & Takiff Clients

From: Brooke R. Whitted and Lara A. Cleary

Date: April 5, 2005 (updated February 8, 2007)

Re: IDEA Re-Authorization

The new Individuals with Disabilities Education Improvement Act of 2004 (“IDEIA 2004”) was signed into law by the President on December 3, 2004. The Act went into effect on July 1, 2005, with the exception of a few sections1 which went into effect immediately. A full version of the IDEA, with changes highlighted, can be found at http://www.copaa.net/IDEA/IDEA97-04COMP.pdf.

The U.S. Department of Education issued its final special education regulations in August, 2006. These regulations went into effect on October 13, 2006. The Illinois State Board of Education has promulgated draft regulations in response to the reauthorization, and the federal regulations. These went to JCAR, but were unanimously rejected. ISBE has been ordered to obtain additional public comment on the proposed rules before JCAR will consider them.

A summary of the most significant changes in IDEIA follows. Where applicable, information from the new federal regulations has also been included. We have also included some information regarding the proposed Illinois regulations.

1 These sections are highlighted in the following pages. 14

Client Alert

SUMMARY OF IDEA 2004 CHANGES

Section Change (Includes new federal regulatory information, where applicable)

Impact

Purpose: (20 U.S.C. 1400 § 601) Adds language “to the maximum extent possible” in several sections of the purpose of IDEA.

Congress has changed the standard for special education students from merely providing “appropriate” services to providing “maximum” services. However, it should be noted that states are still only mandated to provide the current standard of “Free and Appropriate Public Education” (“FAPE”).

Definitions: (20 U.SC. 1400 § 602)“Parent”

Term means: (1) natural or adoptive parent; (2) guardian (but not the state if child is ward of the state); (3) person acting in place of parent (such as grandparent or stepparent with whom child lives or a person legally responsible for child's welfare); or (4) duly appointed surrogate parent. State may allow foster parent to act as parent if: (1) natural parents' authority to make educational decisions extinguished under state law and (2) foster parent has ongoing, long-term parental relationship with child, is willing to make required educational decisions and has no interest that would conflict with interests of child.

The IDEIA added language to include foster parents and “or other relative with whom the child lives or who is legally responsible for the child’s welfare…”

Releasing information to “other relatives” of a child could be a disaster under current state confidentiality laws. Districts will have to be diligent to ensure the information they are releasing to “other family members” who claim to be responsible for the child are in fact within all federal and state exceptions. The new regulation clarified this slightly, although there is no definition for “generally authorized.”

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The new regulations did the following:

-- Substitutes term "biological" for "natural."

-- Clarifies that to be considered a "parent," a "guardian" must be person generally authorized to act as child's parent or authorized to make educational decisions for the child.

Pilot Paperwork Reduction Project:(20 U.SC. 1400 § 609)

Adds text to allow the U.S. Department of Education to “grant waivers of statutory requirements of, or regulatory requirements relating to, Part B for a period of time not to exceed 4 years with respect to not more than 15 states based on proposal submitted by State to reduce excessive paperwork and non-instructional time burdens that do not assist in improving educational and functional results for children with disabilities.”

Should Illinois be one of the 15 states involved in this pilot program, it is difficult to imagine how it will be possible to decrease the amount of paperwork related to special education while still preserving procedural safeguards.

Likely the only true “paperwork reduction” is the change in when a district must provide the written notification of procedural safeguards to parents – which is upon the initial referral for special education, one time per year, upon the first occurrence of a due process request filing and state complaint, and upon the request of the parent

Related Services:(20 U.SC. 1400 § 602(26))

The new IDEA changed previous text of “school health services” to “school nurse services.” Also added “interpreting services,” and specifically excluded “a medical device that is surgically implanted, or the replacement of such a device.”

The exclusion of “a medical device that is surgically implanted” is thought to relate to Cochlear implants, which is a field of special education litigation that has increased significantly in the last few years. Much of the current case law requires school districts to pay for the mapping2 of a child’s Cochlear implant,

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The new regulations expanded the definition of "related services" and clarifies that related services don't include medical device that is surgically implanted, the optimization of that device's functioning, maintenance of the device, or the replacement of the device. Definition also clarifies that nothing limits right of child with surgically implanted device to receive related services determined necessary by the IEP team. Also, doesn't limit responsibility of district to appropriately monitor/maintain devices needed to maintain child's health and safety.

not the implantation itself. However, the mapping procedure is likely required by districts as it is likely what the Dept. of Ed. was referring to in the new regs. where in they stated “doesn't limit responsibility of district to appropriately monitor/maintain devices needed to maintain child's health and safety.”

Child Find Requirements: 20 U.SC. 1400 § 612(a)(1)(C)

Adds new language stating that districts are now required to provide child find services for homeless children and children who are wards of the state. Also provides that districts are now responsible for “child find” requirements for all private schools in their geographic area, and that they must meet with private school employees “throughout the year” to discuss with these representatives “types of services” “how such services will be appropriated if funds are insufficient to serve all children,” and “how and when these decisions will be made.”(continued on next page)

This new language regarding child find requirements suggests that local school districts have to pay for some services for private school children in their area, despite the fact that the child’s parents are not residents of that school district. Current law in Illinois states that the local school district of a child in a private placement does have to serve these children, however the school district in which their parents reside has to pay for those services. It will be interesting to see how this affects current residency law.

Child Find Requirements: 20 U.SC. 1400 § 612(a)(1)(C)(cont’d)

Districts also are required to submit a form to ISBE3 that the private school administrator has signed indicating their

Same as above.

2 The “mapping” of a cochlear implant is a procedure often conducted by a child’s audiologist which sets the sound parameters on each electrode at the appropriate, comfortable levels as indicated by the recipient. This procedure is required to be performed for children with Cochlear implants at least annually, with more visits needed immediately after implantation. 3 Despite Congress’ statement that one of the goals for the 2004 reauthorization was to decrease paperwork requirements for districts, this is the first of numerous new paperwork requirements for districts.

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child find requirements have been satisfied. If a private school is not satisfied with the services the local school district is offering, they are allowed to file a complaint to the State educational agency.

Early Intervening Services:20 U.SC. 1400 § 613(a)(9)

States that school districts can take up to 15% (as opposed to the 5% allowed previously) of Part B special education funds “to develop and implement coordinated, early intervening services” for children K-12 who have not been identified for services but who need additional academic and behavioral support to succeed in a general education environment. Also states these funds can be used for professional development, educational and behavioral evaluations, services and supports.

Teacher Certification:20 U.S.C. 1400 § 612(a)(14)(C)

States that all teachers must meet the “highly qualified” requirements of the No Child Left Behind Act (“NCLB”)4 and must hold at least a bachelor’s degree.

While most school districts are already in the process of changing their teacher requirements due to NCLB, this most significantly impacts school districts who have opted out of NCLB. This now means that even those districts must comply with NCLB requirements for special education teachers.

Mandatory Medication:20 U.SC. 1400 § 612(a)(25)

New language has been added which specifically prohibits school districts from

Parents of children with ADHD who choose not to medicate cannot be treated

4 The requirements in Illinois to be considered “highly qualified” include for teachers to have a valid Illinois teaching certificate in the area of specialty (elementary, secondary or special education) and meet one of the following options: 1) pass the elementary/middle grades test or the content-area test for the area

of teaching responsibility, 2) have a major or coursework “equivalent to a major,” 3) have a master’s degree or other advanced degree/credential, 4) be certified by the National Bard of for Professional Teaching Standards, and 5) Have an endorsement or its coursework equivalent that is sufficient to meet the Illinois maximum requirements for the area of teaching responsibility, have teaching experience in the area and have engaged in relevant continuing professional education.

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refusing educational services to parents who choose not to medicate their children.

differently.

Initial Case Study Evaluations: (“CSE”)20 U.SC. 1400 § 614(a)(1)(C)(i)(I)

The new section states that school districts must complete CSE’s within 60 calendar days, however this section does provide that states may utilize their own timelines if they have a timeline.

Illinois rules currently state that school districts have 60 school days to complete a CSE. Draft Illinois regulations change the timeline to the federal 60 calendar days.

The new regulations clarify that if a parent of child who is home schooled or placed in a private school at parent's expense does not provide consent for initial evaluation or reevaluation, or fails to respond to request for consent, a district may not use consent override procedures and is not required to consider child eligible for services.

Many school districts are already implementing the 60 calendar day rule, in response to the federal statute and proposed Illinois regulations.

Reevaluations:20 U.SC. 1400 § 614(a)(2)(B)

Timeline is the same as for initial evaluations – 60 calendar days.

New language has been added to clarify that reevaluations cannot be performed more than once a year unless the school and parent agree otherwise.

In addition - the 2006 final IDEA Part B regulations clarify that a parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.

Again, Illinois is still 60 school days.

Under the final regulations, a school District still has to consider the results of a parent's independent evaluation.

Proposed Illinois Regulation regarding Referral Timeline: Within 14 calendar days after receiving a referral, the district shall convene the child find team to identify the necessary evaluations, complete the domain sheet, and ensure

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But there are no restrictions in IDEA or its regulations regarding how many times parents may submit new evaluation data they obtain privately.

In contrast to state regulations, a school district may, but is not required to file for a due process hearing when a parent fails to consent to a reevaluation.

that parents receive the results.

Eligibility Determination:20 U.SC. 1400 § 614(a)(5)

Language added states that children are not to be found eligible for special education services if the determinate factor is a lack of appropriate instruction in the essential components of reading instruction (as defined in the NCLB5).

This additional language suggests children can no longer be found eligible for a Learning Disability if they have not previously specifically received reading instruction based on phonics. This is the first time that the IDEA has ever identified (and required school districts to use) specific teaching methodologies.

Eligibility Termination:20 U.SC. 1400 § 614(c)(5)(B)(ii)

New language includes a provision that school districts have to provide “a summary of the child’s academic achievement and functional performance, including recommendations on how to assist the child in meeting… postsecondary goals,” upon discontinuing special education services for a child (including graduation and aging out of the special education system). Also known as “SOP”

Many comments have expressed that this requirement may be troublesome. A model form, drafted by CEC, is available on the internet and is being adopted by many districts. ISBE has also drafted a model form.

Specific Learning Disabilities Eligibility: 20 U.SC. 1400 § 614(b)(6)(A)

A school district is not required to take into consideration whether the child has a

This language dispels the belief that just because a child has a “severe discrepancy”

5 The “essential components of reading instruction” as defined in NCLB include: a) phonemic awareness, b) phonics; c) vocabulary developments, d) reading fluency, including oral reading skills, and e) reading comprehension strategies.

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severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation or mathematical reasoning. Instead, a school district “may” use a process that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures. (RTI – Response to Intervention)

New regulations clarify:-- State criteria now: (1) must not require use of severe discrepancy model; (2) must permit use of process based on child's response to scientific, researched-based intervention; and (3) may permit use of other alternative research-based procedures for determining whether child has SLD.-- Clarifies that determination of SLD may be found if child does not achieve adequately for child's age or to meet state-approved grade-level standards in one or more of the eight areas (oral expression, basic reading skill, etc.) when provided with learning experiences and instruction appropriate for child's age or state-approved grade level standards

between IQ scores in certain areas they are automatically found eligible for special education services under the LD category.

The proposed Illinois special education rules [226.130] allows Illinois school districts to continue to use the discrepancy model as long as they also use a process “that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures,” and also states that a “district may also use other alternative research-based procedures for determining whether a child has a specific learning disability.”

Many professionals in the field of special education, such as Janet Lerner are critical of this approach, as Illinois has not yet validated RTI in part of the process of LD students.

IEPs: Multi-Year IEP Determination Pilot Program:(20 U.S.C. 1400 614(d)(5)(A)

Adds text to allow 15 states (which have yet to be identified) to develop “multi-year” IEPs (every three years) as opposed to the current annual reviews required by law. States must submit a proposal to the Federal government in order to be

While this initially was shocking to parent attorneys and advocates, the language included in this section still requires parental consent before implementing a “multi-year” IEP. In addition, annual goals are still required for the IEP and “an

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considered part of this program. annual review must be conducted to determine the child’s progress toward the annual goals.” If the child is not progressing toward the goals, then the IEP must be redrafted. The IEP must also be reviewed at the request of a parent. As such, it appears that this provision will have little to no impact on the current standards for IEPs, in districts where parents are adequately informed.

IEPs:Short term objectives:20 U.SC. 1400 § 614(d)(1)(A)(i)(I)(cc)

This section omits the requirements for short-term goals, and instead states that IEPs must contain “a statement of measurable annual goals, including academic and functional goals…” Districts may use benchmarks or objectives however, objectives are still necessary for those students who are receiving alternate assessments.

It will be more difficult for parents and districts to prove definitively whether the child is meeting annual goals, as “measurable objectives” are no longer required.

Also note that the present levels of performance statement is now called the present levels of “academic achievement and functional performance.”

Note that neither the new statute nor the regulations provide a definition of “functional performance.”

IEPs:Student progress:20 U.SC. 1400 § 614(d)(1)(A)(i)(III)

New language discontinues the need for quarterly progress reports, and instead only issues a suggestion for the progress reports to be issued “concurrent with the issuance of report cards.”

While most Illinois elementary and high schools do issue progress reports and report cards more than once a year, a district could potentially only have an obligation to track a special education child’s progress toward goals annually. If more frequency is desired, it appears it will be the responsibility of the parents to request that it be written into the IEP that

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the district provide more frequent reports.

IEPs:Transition Services:20 U.SC. 1400 § 614(d)(1)(A)(i)(VIII)

The new language pushes the requirement for transition services planning from 14 to “beginning not later than the first IEP to be in effect when the child is 16…” It also requires the team to draft “appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate independent livings skills.” It also must list “the transition services (including courses of study) needed to assist the child in reaching those goals.”

This new language significantly increases the requirements for transition planning, but raises the age when the District has to begin the process. The current rules in Illinois still require the process to begin at age 14 ½. The proposed regulations maintain this 14 ½ implementation requirement.

IEPsIEP Attendance and Excusal:20 U.SC. 1400 § 614(d)(1)(C)(i), (ii) and (iii)

New language states that if a required IEP team member’s “area of curriculum or related services I not being modified or discussed in the meeting” and if the parent and district agree the attendance of a mandatory IEP participant is not necessary, then that member does not have to participate. Requires written agreement by the parent.

In addition, even if the required team member’s “area of curriculum or related services” is being modified or discussed, that person may be excused “in whole or in part” from attending an IEP meeting if: 1) a parent agrees in writing, and 2) “the member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to that meeting.”

This might potentially mean that districts could have only one representative (the LEA representative) present at an IEP meeting as long as summary reports are provided by all other participants. Remember, an advance report by the absent participant will be required if the person’s area of curriculum or related services is at issue, and written parent agreement must always be obtained prior that individual’s excusal. Districts must be careful about excusing a regular education teacher’s participation, as the new IDEIA has strengthened the role of the regular education teacher at IEP meetings – requiring that teacher to help “determine the appropriate behavior interventions and strategies, and supplement aides and services that are necessary for their classrooms.” (§ 1414(d)(3)(C))

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New regulations also clarify that -- Parent and district may agree to use alternative means of meeting participation, such as video conferencing and conference calls, if parent is unable to attend in person.

IEPsIEP Changes Outside of IEP Meeting:20 U.SC. 1400 § 614(d)(3)(D)

IDEA 2004 includes a new provision that authorizes parents and schools to amend a child's IEP without a formal IEP team meeting. Before this change in law, such a thing was strictly forbidden. Changing an IEP without having an IEP team meeting would have been a classic procedural error, and one that the courts likely would have considered legally significant. No more.

We now have specific legal authorization to amend an IEP without a formal IEP team meeting. However, it is important that school officials use this process properly. The IEP team leader must have a good understanding of when and how the IEP amendment process should be used.

The final regulations are helpful. There were many commenters who asked the department of Education to put some restrictions or limitations on the authority of schools and parents to amend a child's IEP. The Department refused to do so. The comment to the final regulations notes that "The Act does not place any restrictions on the types of changes that may be made, so long as the parent and the public agency

The regulations simply say that "In making changes to a child's IEP after the annual IEP team meeting for a school year, the parent of a child with a disability and the public agency may agree not to convene an IEP team meeting for the purposes of making those changes, and instead may develop a written document to amend or modify the child's current IEP." 34 CFR 300.324 (a)(4)(i).

The regulations further require that if such changes are made "the public agency must ensure that the child's IEP team is informed of those changes" and that upon request, "a parent must be provided with a revised copy of the IEP with the amendments incorporated." 34 CFR 300.324 (a)(4)(i) and (ii). 

The regulations also specifically state that changes to an IEP may be made by amendment without redrafting the entire IEP.

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agree. Accordingly, we do not believe it would be appropriate to include restrictions on such changes in the regulations.

Procedural Safeguards:Procedural Safeguards Notice:20 U.SC. 1400 § 615(f)(3)(D)

New IDEIA states that the notice of procedural safeguards must be given to parents only one time per year, and upon initial referral for evaluation; upon the first receipt of a complaint, in accordance with discipline procedures, and upon parental request.

The new regulations further clarify:

-- that a copy of safeguards must be given to parents upon receipt of first due process complaint in school year, as well as upon receipt of first state complaint.

-- Notice must also be given upon removal of student for violation of school code of conduct that constitutes a change of placement

This is probably one of the only true paperwork reductions as Districts are no longer required to provide the notice at every IEP meeting or in every ten-day notice of a meeting. However, Districts still want to take care to document that a parent was provided with the one yearly copy, as it is a critical issue if the parent makes a unilateral placement and fails to provide the required ten-day notice of that placement. Many districts are providing a copy at the child’s annual review, and having parents sign or initial that they received the copy.

Procedural Safeguards:Statute of Limitations:20 U.SC. 1400 § 615(f)(3)(D)

This new language now assigns a uniform statute of limitations (two years before the date the parents or public agency “knew or should have known”) regarding IDEA cases.

Although it was never specifically included within Illinois’ rules and regulations, case law has affirmed that the statute of limitations is generally a two-year period, so not a real change for Illinois.

Due Process Complaint Notice and Amended Complaint Notice:20 U.SC. 1400 § 615(f)(3)(B), (D) and (E)and 20 U.SC. 1400 § 615(o)

New language indicates that after a party files for due process, the party receiving the request has 15 days to object to the sufficiency of the request. If the receiving party does not object to the request, then it is “shall be deemed sufficient.” If the

When IDEA was originally created, the due process provision was created in order for parents to be able to represent their own children at hearing, so they did not have to pay for lawyers. With the addition of this language, it could be argued that a

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receiving party does object to the request, then the hearing officer assigned to the case will determine if the request meets legal requirements.

This provision also states that the party filing the due process request may not raise additional issues other than those listed in the request, at hearing, unless the other party agrees.

A parent may file an amended due process complaint only in two circumstances: 1) if the other party consents in writing, and 2) if the hearing officer grants permission.

However, another new provision indicates that nothing precludes parents from filing a separate due process complaint for issues not listed on previous complaints.

hearing officer could dismiss a due process complaint on its face without an opportunity for the parent to correct the complaint. While parents are allowed to file a separate complaint with new issues listed, they might not be savvy enough to properly word their complaint and could be left with no remedy. One impression of this provision is that it could lead to “full employment for lawyers.”

The complaint noticed (due process request) must contain the child’s name and address, the school the child attends, a description of the problem alleged, including the facts of the situation, and a proposed resolution. A parent filing the request must send it to the school district superintendent and it is then the district’s responsibility to forward the request to the ISBE within 5 days for the appointment of a hearing officer.

Response to Due Process Complaint:20 U.SC. 1400 § 615(c)(2)(B)(ii)

Another provision has been added that once a party has received a due process request, they are required to answer or respond to the specific issues listed in that request within 10 days. ISBE has issued a guidance memo, which contains some information regarding the content of this notice. This memo is available on the ISBE website.

If a hearing officer has been assigned, he or she must also receive a copy of the response. If a hearing officer has yet to be assigned, then it must also be sent to ISBE.

Important new ten-day timeline! It is unclear whether an IEP which addresses the issues in the complaint may suffice as a “response.”

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Resolution Session:20 U.SC. 1400 § 615(f)(1)(B)(ii)

After a district receives a request for due process, it is mandated to convene an “IEP meeting” to try to resolve the complaint within 15 days unless both parties agree to waive this meeting. The section further states that if a parent does not attend the meeting with an attorney, then the district’s attorney cannot be present at the meeting. This is not intended to be an IEP meeting (although it arguably may) but must include the parents, a district representative, and members of the IEP team that have “knowledge of the request.”

It is believed that this provision was added to encourage resolution without the need for involvement of attorneys or hearing officers.

This provision also brings into question whether parents will be able to bring non-legal “advocates” with them (as opposed to attorneys) without the district being able to also be represented.

The parties may agree to use the state mediation procedures in the place of a resolution session.

Resolution Session:20 U.SC. 1400 § 615(f)(1)(B)(ii) (cont’d)

If both parties agree to hold the meeting and resolve the situation amicably, then this agreement will be considered a legally binding agreement between both parties. However, the agreement can be voided by either party within three days of execution.

If both parties have not reached a settlement within 30 days after the due process request was filed, then the hearing timelines commence.

Currently, ISBE has taken the position that the 45-day due process timeline does not start until the 30-day “resolution session” timeline is exhausted, but a few Illinois hearing officers area already disagreeing. Thus, different hearing officers may utilize different timelines unless a court provides precedent.

Attorneys Fees:20 U.SC. 1400 § 615(i)(3)(D)(ii)

A new provision has been added stating that a court may award attorney’s fees to a district “against the attorney of a parent” who: 1) files a complaint that is frivolous, unreasonable or without foundation and 2)

While this section first appeared shocking to most parents, it is believed that to prove a case is “frivolous, unreasonable or without foundation” will (as is now the case in all litigation) be extremely

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who continues to litigate after the litigation clearly became frivolous, unreasonable, or without foundation.

A district can also be awarded attorney’s fees from a parent or a parent’s attorney if the complaint was brought for “any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.”

The provision also states that “at the discretion of the state” attorney’s fees can be awarded for mediation, however they cannot be awarded for a lawyer’s attendance at a resolution session.

difficult. However, if a school district pursues a parent under this section, even if the parent wins, the resources utilized to defend the claim are unduly burdensome to most families.

Discipline: 20 U.SC. 1400 § 615(k)(1)(D)

This provision states that a special education child who is removed from his or her educational placement for more than 10 school days in one academic year must be provided FAPE and must also receive a functional behavioral assessment and behavior intervention services and modifications.

The new regulations specify: A change of placement occurs if removal is for more than 10 consecutive school days or if child is subjected to series of removals that constitute pattern -- (1) because the series of removals total more than 10 days in school year; (2) because child's behavior is substantially similar to behavior in previous incidents that resulted in series of

The new regulations finally codifies OSEP’s view that a pattern of removals totaling more than ten days may constitute a change of placement.

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removals; and (3) because of additional factors such as length of each removal, total time child removed and proximity of removals to one another.

Manifestation Determination:20 U.SC. 1400 § 615(k)(1)(E)

This provision poses new questions the “relevant members of the IEP team” must consider when determining whether a child’s behavior was or was not a manifestation of their disability: 1) If the conduct in question was caused by or had a direct and substantial relationship, to the child’s disability, or 2) if the conduct in question was the direct result of the school district’s failure to implement the IEP.

(The previous questions were: 1) If a child’s disability impaired the ability of the child to understand the impact and the consequences of the behavior, and 2) if the child’s disability impaired the ability of the child to control the behavior)

It is believed the amended language makes it easier for a school district to determine that a child’s behavior was not a manifestation of his/her disability.

Determination that Behavior was a Manifestation:20 U.SC. 1400 § 615(k)(1)(F)

This is a new section and states that if a district does find a child’s behavior to be related to his or her disability, then it is required to: 1) create and FBA and BIP for the child (if one was not already completed), 2) revise a child’s FBA and BIP if one was already completed and 3) return the child to his or her previous educational placement.

This new section offers parents the guarantee that if their child is suspended for more than 10 days in a year, that a FBA and BIP will be drafted.

45-Day Removal (length of removal):20 U.SC. 1400 § 615(k)(1)(G) and (k)(1)(H)(2)

New language specifies that a child’s removal may now be implemented for 45 school days, as opposed to 45 calendar

Taking into consideration that a typical school year is approximately 180 school days, removal for 45 days constitutes

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days.

The new code has also changed the parental appeals process for these 45-day removals. The new language states the child’s placement will remain at the alternative placement during the pendency of the dispute.

In addition, the timeline for completion of an expedited due process hearing to overturn the decision to remove the child has been extended. Formerly, the requirement was for the hearing and opinion to be completed within 15 calendar days of a hearing being requested by the parents. The new language changes this from 15 calendar to 30 school days.

about 25 percent of the school year.

The new timeline set for “expedited” due process hearings is now more in favor of districts, since 30 school days translates to about 45 calendar days.

45-Day Removal (basis for removal):20 U.SC. 1400 § 615(k)(1)(G) and (k)(1)(H)(2)

A third reason for removal of a child has also been added, which is for “inflict[ing] serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the school district.”

The new regulations further clarify:

Districts have authority to remove student to IAES for not more than 45 school days if student (1) carries weapon to or possesses weapon at school, on school premises or at school function; (2) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled

There will also be considerable debate regarding the language “serious bodily injury.” The section states that the definition is defined as it is in the U.S. criminal code (18 USC §1365(3)(h), which defines it as: “(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.”

From this definition, it appears that it will be difficult for school districts to define a

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substance, while at school, on school premises or at school function; or (3) has inflicted serious bodily injury upon another person while at school, on school premises or at school function.

-- Hearing officer may order change of placement to an appropriate IAES for not more than 45 school days if IHO determines that maintaining current placement is "substantially likely" to result in injury to the child or to others. Hearing officer may also return child to placement from which remove if determines that removal was improper or that child's behavior was manifestation of disability.

--Hearing appeal procedure may be repeated if district believes child would be "dangerous" if returned to original placement.

child’s actions as “serious bodily injury,” however case law will have to determine what is considered “serious.”

Protections for Children Not Yet Eligible for Special Education and Related Services:20 U.SC. 1400 § 615(k)(5)(C)

New language states that a school district is deemed to have “knowledge” that a child has a disability if, before the behavior occurred: 1) the parent of a child expressed concern, in writing, to the district, 2) the parent requested a CSE, or 3) a teacher of the child or other school district personnel expressed specific concerns about a pattern of behavior to the director of special education or “other supervisory personnel.”

New language has significantly restricted what is considered “reasonable notice” to the school district that a child may have had a disability. Former language would allow for a child’s “behavior or performance” to be sufficient notice, however the new language places added burden on the parents of a child who may have a disability to be well informed of their rights and assertively insure that concerns are brought to the school district prior to the child displaying behavior. Training is needed in this area.

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Also, a child may not be considered to be a “not yet eligible child” if the District had performed a CSE and an IEP and the parent refused consent for the initial placement.

Preschool Grants:20 U.SC. 1400 § 635(c)

The new language now allows for states to have the option of creating a policy which would allow parents to choose to continue early intervention services “until such children… enter kindergarten,” as opposed to having the responsibility rest solely on the school district upon age three.

If Illinois chooses to create such a policy, then parents who choose these services will not be afforded the protections offered under IDEA for special education students until they are placed into kindergarten.

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LARA A. CLEARYWHITTED, CLEARY & TAKIFF LLC

3000 Dundee RoadNorthbrook, IL 60062

(847) 564-8662 (847) 564-8419 Faxwww.wct-law.com

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NEW CASE LAW FROM THE SUPREME AND LOWER

COURTS

I. SUPREME COURT

a. Burden of Proof – Schaffer v. Weast, 546 U.S. 49 (2005)

In this case, the U.S. Supreme Court, held that "[t]he burden of persuasion in an administrative [due process] hearing challenging an IEP is properly placed upon the party seeking relief, whether that is the disabled child or the school district." In most cases this is the parent bringing the due process action.

Opinion author Justice Sandra Day O'Connor stated that "Absent some reason to believe that Congress intended otherwise, the Court will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief." This view embraced the common civil practice rule that the party seeking the remedy bears the burden. Thus, O'Connor instructed that plaintiffs should naturally be expected to bear the risk of failing to prove their claims.

In response to criticism that the rule would further shift the playing field towards school districts, O'Connor noted the IDEA levels the playing field by giving "parents a number of procedural protections that ensure that they are not left without a realistic chance to access evidence or without an expert to match the government.”

b. Recovery of Expert Witness Fees – Arlington Central School District v. Murphy, 126 S.Ct. 2455 (2006)

The U.S. Supreme Court decided to resolve the issue of whether the IDEA authorizes recovery of expert fees after the 2nd Circuit's earlier decision in the case created a split among several Federal Circuits.

In determining that the IDEA's attorney's fees provision does not extend to the recovery of expert fees, the High Court relied on the plain language of the IDEA, which only specifies that prevailing parents can receive “reasonable attorney's fees.” The Court reasoned that since states accept certain conditions as part of receiving funding under the IDEA, they must be able to ascertain those conditions. Nothing in the IDEA puts states on notice that they will be responsible for expert fees.

In his dissent, Justice Breyer looked both to the legislative history and to the IDEA's statutorily defined purposes to find support for including expert fees as part of “costs,” which may be awarded to parents is they prevail at a due process hearing. Breyer criticized the majority for failing to consider the IDEA’s legislative history, arguing that the Court adopted an interpretation of the law

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"that undercuts, rather than furthers, the statute's purpose" of providing FAPE to all children with disabilities.

c. SUPREME COURT GRANTS CERT ON ISSUE OF PRO SE PARENTS: MAY THEY REPRSENT THEIR CHILDREN IN IDEA MATTERS? , Winklelman v. Parma City School Dist., 150 Fed.Appx. 406 (6 th Cir. 2005)

On October 27, 2006, the United States Supreme Court granted certiorari review to Jeff and Sandee Winkelman, the pro se parents of an 8-year-old boy with Autism, regarding the issue of whether the IDEA allows them to represent their son in federal court, despite the fact that they are not attorneys.

In September 2005, the 6th Circuit had ruled that the Winkelmans could not represent their son in an IDEA action in federal court, basing its decision on its prior ruling in Cavanaugh v. Cardinal Local Sch. Dist., that the IDEA does not permit parents to represent their own children pro se in a federal court.

Other Circuits, such as the 3rd Circuit, have held that that parents who file IDEA suits in federal courts can proceed pro se only with regard to their own procedural claims.

The Supreme Court is expected to hear oral arguments in the case in spring 2007.

II. LOWER COURTS - Illinois

a. Continuum of Special Education Placements - Beth B. v. Mark VanClay and School District #65, 282 F.3d 493 (7th Cir. 2002)

This case, which involved mainstreaming for a young girl with Rett Syndrome, has upheld the requirement that a continuum of special education placements must be available for all children. Here, the parents wanted their daughter fully mainstreamed for all classes with non-disabled peers, while the school district believed that the student could only receive educational benefit in a more structured, special education placement. The parents argued that their daughter was receiving some "benefit in the mainstream” and therefore the school district was prohibited from changing her to a self contained placement.  The Appellate Court disagreed with parents, stating that they had misread relevant legal provisions.  In fact, the court said that Beth's parents…

"confused the FAPE side of the coin with the LRE side.  They contend that Beth's current placement satisfies the Rowley standard because she received an educational benefit at Lake Bluff Middle School.  So long as the regular classroom confers "some educational benefit" to Beth, they argue, ……the school district cannot remove her from that setting.  This language is misplaced.  The Rowley holding applies only to the school district's responsibility to provide a

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FAPE – a requirement that analyzes the appropriateness of the district's placement – not the appropriateness of the ELS alternatives including the regular education classroom.  (Emphasis added)

 Thus, looking back to Rowley, a student must receive more than just “some educational benefit” and must be in a placement designed to offer FAPE. The court upheld the district’s placement recommendation in a more structured placement.

(see also the recent Northern District of Illinois case - Bd. of Educ. of Township High Sch. Dist. No. 211 v. Michael R. and Diane R. (“Lindsey R. case”), 44 IDELR 36 (N.D. Ill., 2005), which upheld the Beth B. reasoning. The Seventh Circuit held oral argument on the Lindsey R. case in September, 2006. No ruling has been made to date.)

b. Transition Services/Graduation - Andrew B. v. Bd. Of Educ. of Community High Sch. Dist. 99, 46 IDELR 245 (N.D. Ill. 2006)

The Northern District of Illinois considered whether a school district violated the IDEA after it graduated a high school special education student with cerebral palsy and speech-language impairments at the end of his senior year. Prior to graduating the student the team met with the student and his parent, evaluated his progress, and discussed three options: a transitional program that focused on life skills, enrollment in vocational training courses at a local college, or a program that had both continued high school instruction and vocational training. The IEP team ultimately chose the vocational training at the local college, for which the student required a high school diploma. A few months following the graduation, the student filed for a due process hearing, arguing that he was entitled to services through the age of 21.

The judge upheld the school district’s recommended choice, holding that the evidence showed that the student’s enrollment at a local college would provide a better educational benefit than the student’s continued attendance in high school. In addition, the court found that the school district had conducted a “careful analysis” of the student’s progress and the choices available to him. Therefore, they had provided a free and appropriate public education.

III. LOWER COURTS – Other Jurisdictions

a. District Obligation to Draft IEPs - Ms. K. v. Maine Sch. Admin. Dist. No. 40, 46 IDELR 247 (D. Me. 2006).

A Maine federal court held that a school district may be liable under the newly reauthorized IDEA for failing to draft an IEP for a unilaterally-placed, private school student. Specifically, the school district had discontinued tutoring services and failed to develop an annual IEP following a 19-year-old student's unilateral placement in a private, out-of-district facility. In the past, most jurisdictions held

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that a unilateral placement absolved school districts of their procedural obligations, such as annual reviews and three-year reevaluations.

The school district argued that they had not violated the new IDEA because the duty to develop the student's IEP shifted to the Maine LEA in which his private school was located.

The federal court judge reasoned that the reauthorized IDEA does not specify which LEA in a state must carry out the duties owed to a particular child with disabilities, reversing a decision in the district's favor and remanding the case to an IHO for further proceedings. The judge explained that the IHO was better suited to determine which LEA was responsible for developing the student's IEP.

What this decision means is that school districts should not assume they have no further obligation to provide special education or related services to a child who is placed in another district, as the new statute is silent as to which district bears the responsibility for a student’s IEP when the student transfers to another district.

b. Is Rowley Still the Standard for Special Education? - J.L. and M.L. ex rel. K.L. v. Mercer Island Sch. Dist., 46 IDELR 273 (W.D.Wash. 2006).

A Washington U.S. District Court Judge reversed a hearing officer’s decision that a school district had offered a free and appropriate public education to a 17-year old student with learning disabilities because the student did not attain any of her IEP goals during a two-year period.

The significance of this case is that the judge observed that while the Rowley case only requires school districts to provide a “basic floor of opportunity” to disabled students, the intent of Congress in the IDEA reauthorization of 1997 “has been to require a program providing meaningful educational benefit towards the goal of self sufficiency,” a loftier goal than Rowley, which had been decided much earlier.

In this case, the judge looked at the IEP and services offered to the student and found that the rather than addressing the student’s reading and writing deficiencies and providing her with the services she needed to make progress in these areas towards self-sufficiency, the district merely provided the student with an aide to do her reading and writing for her. The judge noted that “employing accommodations and other compensatory strategies without increasing a student’s skill level does not represent compliance with the IDEA. It is not sufficient to simply ‘escort’ and educationally challenged student through the school system.” In addition the judge stated that “IEPs for children must focus on providing instruction and experiences that enable the child to prepare herself for later educational experiences and for post school activities, including formal education, if appropriate, employment and independent living.”

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So – the question following is: Has K.L. changed the way at parents and educators must look at special education situation?

The answer: Only slightly. The basic Rowley two-prong analysis is still a good analysis. The Washington case simply starts a judicial conversation about where the floor of opportunity should be under the traditional Rowley analysis. The attorney in the Washington case has already indicated that he was very careful not to ask the court to overrule Rowley, but simply to raise the floor of opportunity under the “educational benefit” definition.

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