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THE NEW IDEIA(the Individuals with Disabilities in Education Improvement Act of 2004)
2005 - PASA Workshopspresented by
Donna S. Weldon, Esq. and Stinson W. Stroup, Esq.
2
New Mission
Discrimination model Access, accountability, now achievement Alignment with NCLB Research-based methodology
3
Pennsylvania’s Unique Problems
Chapter 14 incorporates by reference existing federal regulations
Conflict with IDEIA – Not permitted State exceeds IDEIA requirements -- OK
4
Research-Based Methodology –New Battleground
New burden of proof for district IEP includes
– A statement of special education and related services based on peer-reviewed research to the extent practicable, to be provided to the child
(20 USC § 1414(d)(1)(A)(i)(1)(iv))
5
Interaction with NCLB
LRE-separation occurs only when nature or severity of disability is such that education in regular education classes, with the use of supplementary aids and services, cannot be achieved satisfactorily
LRE in the context of challenging standards and achievement testing and subsets
Alternate assessments – separate standards What about Gaskin?
6
Procedural Safeguards-Evaluation
Initial placement refused by parents No complaint may be filed by district Refusal of consent to services – defense for
district and no need to convene IEP team or write IEP
60 calendar day timeframe for evaluation from parental consent
Distinguish screenings to determine instructional strategies for curriculum implementation
7
Procedural Safeguards-Evaluation cont’d
Maximum number 1x per year unless agreed to; minimum 1x every three years
Response to Intervention v. Discrepancy Model
8
Procedural Safeguards-Evaluation cont’d
Graduation – no longer eligible No evaluation Summary of performance
– Academic achievement– Functional performance– Recommendation: postsecondary goals
9
Procedural Safeguards-IEP
Elimination of benchmarks or short-term objectivesException: students taking alternative
assessments How progress will be measured and when
periodic reports
10
IEP
Educational performance now academic achievement and functional performance
Measurable goals now academic & functional Services based on peer-reviewed research Accommodations to measure achievement on
state & district-wide assessments Why alternative assessment Guidelines for accommodations & alternative
assessments
11
First IEP In Effect When Child IsAge 16
Measurable postsecondary goals Age-appropriate transition assessments
(training, education, employment or independent living skills)
Transition services (including courses of study)
One year before majority, child informed of rights
12
Procedural Safeguards-New Flexibility
Team member attendance/excusal– Parent agrees in writing– Not being discussed or modified– Member’s written input before meeting
IEP amendment by agreement without meeting/redraft
Pilot program Conference calls as alternative to meetings Email communication
13
Procedural Safeguard Notices(How Often and New Contents)
Only 1x per year First occurrence of filing complaint Parent requests Notice of disciplinary change of placement
14
ComplaintNew Process to Reduce Litigation
Two-year statute of limitations from date knew or should have known unless mitigating circumstances
Complaint must state following information:– Nature of problem relating to proposed
initiation or change– Facts relating to problem– Proposed resolution
SEA to develop model complaint form
15
ComplaintNew Process to Reduce Litigation, cont’d
Right to object to complaint as insufficient within 15 days
Within 5 days of receiving objection to complaint, hearing officer renders decision
District responds with notice within 10 days
Non-complaining party within 10 days sends answer addressing problems
16
ComplaintNew Process to Reduce Litigation, cont’d
Amended complaint notice if agreed to or permitted by Hearing Officer
May raise no issue not in complaint
17
District Written Prior Notice to ParentOr Response When Propose or Refuse to Initiate or Change Description of action Explanation of why propose or refuse Description of evaluation, assessment, record to
support decision Procedural safeguards notice Sources for parental assistance Description of other options considered and why
rejected Factors relevant to proposal or refusal
18
Resolution Session (NEW)Kinder, Gentler, Due Process
Required meeting Within 15 days of receipt of parents’
complaint Discussion of complaint to try to resolve
complaint Representative of district with decision-
making authority No attorney unless parents have attorney
19
Resolution Session (NEW), cont’d
Timelines for due process hearing commence within 30 days of receipt of complaint
Settlement agreement-either party may void within 3 business days
20
Discipline-Greater Discretion for Schools
New Manifestation Determination New 45 School Days for IAES New Unilateral Placement for Serious
Bodily Injury Limitations on Child Not Yet Identified Stay-Put for all disciplinary placements
21
Manifestation Determination Review Conducted by relevant members of IEP
team Relevant members determined by parent
and LEA To determine if misconduct
– Was caused by, or had a direct and substantial relationship to disability, or
– Was the direct result of failure to implement IEP
22
IAES/Special Circumstances
45 school days replaces calendar days Placement without regard to manifestation
determination New special circumstances of “has
inflicted serious bodily injury”
23
IAES/Special Circumstances, cont’d
Serious Bodily Injury:– Substantial risk of death,– Extreme physical pain,– Protracted and obvious disfigurement, or– Protracted loss or impairment of the
function of a bodily member, organ, or mental faculty
24
Requirements of Deemed to Know
Parent in writing to supervisor, administrator or teacher of need for special education or requested evaluation
Teacher or provider expressed specific concern about pattern of behavior directly to director of special education or appropriate supervisor
25
No Knowledge if:
Parent has not allowed evaluation Refused services Evaluation conducted and no disability
found
26
Expanded Stay-Put
Parents appeal disciplinary placement or manifestation determination
During pendency of proceedings, child remains in the IAES
Does not need to be special circumstances
27
Highly Qualified (“HQ”)-- In General (section 602. Definitions)
Same meaning as NCLB But also includes full special education
certification (except charter school teachers may meet state charter school law certification requirements).
No emergency, temporary, or provisional waiver
28
HQ: Special Education Teachers teaching to alternative standards
Exclusively to students assessed against alternative achievement standards (1%)– Meet NCLB new or not new criteria;
or
– Elementary teacher criteria and
If content is above elementary level, demonstrate subject matter knowledge as determined by State
29
HQ: Special Education Teachers Teaching multiple subjects Meet the requirements of NCLB for any elementary,
middle or secondary school teacher who is new or not new to the profession
If not new- demonstrate competence in all core academic subjects in same manner as required for a elementary, middle or secondary teacher (may use HOUSSE)
If new and highly qualified in math, language arts or science may demonstrate competence in other areas in same way as required for elementary, middle or secondary teacher (may use HOUSSE) within 2 years.
30
HQ: How this will play out in Pennsylvania, we think,
Current teachers: 1) Certified special education teachers are
highly qualified as assigned to provide support
2) Certified special education teachers teaching content at any level will have to demonstrate content proficiency in some way
31
HQ: currently teaching to elementary PSSA
Hold a valid Instructional I or Instructional II certificate
Have taught elementary content May use Bridge II to become highly qualified for
elementary education– Transcript review
or– Praxis test of Fundamental Subjects content
knowledge (met by all certified after 1987)
32
HQ: Currently teaching to alternate assessment
Meet same requirements as teachers of elementary content.
33
HQ: Currently teaching content to middle-secondary PSSA
Hold a valid Instructional I or Instructional II certificate
Hold a content area certificate or enter Bridge I in order to earn a content area certificate. (Can earn content area certificate by passing relevant Praxis).
Enter Bridge II for additional endorsements to become highly qualified in additional subjects
34
HQ: Bridge I (see www.pde.state.pa.us)
Bridge requirements (Pa’s HOUSSE)– Full time teaching– Instructional I or II issued before July 1, 2004– Currently assigned to core content for which not
Highly Qualified– Earn 12 points for experience to get on Bridge– Earn 18 additional points within next 3 years
Can avoid Bridge I by passing relevant content area Praxis to earn content certificate in second area
35
HQ Bridge II (see www.pde.state.pa.us)
Getting on Bridge II– Teacher of multiple subjects in self-contained
classroom at some time since 2000-2001 school year
– Has a content area certificate (can be obtained through traditional means, by passing relevant Praxis, or by Bridge I).
– Meets experience requirements to get on Bridge I– Demonstrates satisfactory performance evaluations
using PDE approved form
36
HQ: Bridge II (cont)
Getting off Bridge II with designations– Teacher must have earned at least three college
credits in content area and
– Pass praxis test of Fundamental Subjects: Content Knowledge or Elementary Education Content Knowledge
or – if pre-1987 certificate holder, document successful
teaching of content for at least one full year.
37
HQ: Certification v. Designation
Bridge I results in a certificate Bridge II results in a designation of “highly
qualified” Holder of certificate can teach subject in
any setting Holder of designation is highly qualified to
teach subject only within scope of his or her certificate
38
HQ: legal effect
Holder of certificate can be assigned to teach within the scope of certificate without penalty.
If not highly qualified, district must notify parents of students assigned to that teacher that he or she is not highly qualified.
No “right of action” created by failure of employee to be highly qualified
39
HQ: Pipeline still a problem
If new and highly qualified in math, language arts or science may demonstrate competence in other areas in same way as required for elementary, middle or secondary teacher (may use HOUSSE) within 2 years.
40
Early Intervening Services
Unidentified students who need additional academic and behavioral support
Professional development to enable– Scientifically-based academic instruction– Behavioral interventions, including scientifically-
based literacy instruction Educational & behavioral evaluation, services
supports, including scientifically-based literacy instruction
41
Children Who Transfer School DistrictsWithin Same Academic Year
Within PA FAPE, comparable
services to previous IEP Consultation with parents Until adopts previous IEP
or adopts new IEP Move promptly to obtain
records
Outside PA Same, except conduct an
evaluation
42
Equitable Participation
IU subgrantee responsibilities Written affirmation of input from private
schools/parents on child find, determination of funding, participation in services
How, where, and by whom services will be provided
Explanation of reasons for refusing services Private school may file complaint with SEA Appeal to OSEP
43
Odds and Ends
Prohibition on mandatory medication “Part ‘C’ IEP transition – invite service
representative” New restrictions on hearing officer’s use
of procedural violations Gifted special education Hostile parent
44
Compensatory Education
Knows or Should Have Known IEP Failed Money to Buy Developmental, Remedial
or Enriching Instruction Compare Tuition Reimbursement
45
Compensatory Education, cont’d
Peer-reviewed research basis for methodology Measurement of progress/academic achievement
– impossible to assess programs FBA/BIP Failure to implement Identified Needs Not Addressed in Goals,
Benchmarks
46
Compensatory Education, cont’d
No Instruction Only Accommodation Failure to Implement SDI’s, Consultation,
Related Services Failure to Identify or Evaluate Parent Request Ignored
47
Compensatory Education, cont’d
Calculation of Damages Number of Hours Missed Service Number of School Days Salaries and Benefits (Actual/Median) Poison the Entire Day?
48
Court Award of Attorneys Fees Against parents attorney if-
– Frivolous, Unreasonable, or Without Foundation(F, U, WF) Complaint
– Continues to litigate afterBecomes clear F, U, WF
Against attorney or parent if-– Complaint was presented to harass, cause
unnecessary delay, or needlessly increase cost of litigation
49
Due Process Complaint NoticeService to Other Party & ODRIdentifying Information; and
Description of Problem re: Proposed Change or InitiationProposed Resolution
Within 15 days of receipt Within 10 days of receipt
Objection to SufficiencyService to other party & H.O.Failure to meet notice reqs.
District’s ResponseIn lieu of prior written notice• why district proposed or refused action• other options considered• why objection rejected• description of evaluation, assessment record used as basis• description of relevant factors
Does not preclude objection
Within 5 days of receipt
Determination of Sufficiency ofD.P. Complaint Notice
Amended Complaint NoticeOther Party Consents & Opportunity for MtgH.O. Permits More Than 5 Days Before Hrg.
Timeline Recommences When File Amended Notice
Non-Complaining PartyResponse Address Issues Raised in Complaint
50
Due Process Complaint NoticeService to Other Party & ODRIdentifying Information; and
Description of Problem re: Proposed Change or InitiationProposed Resolution
Within 15 days of receipt Within 30 days of receipt
Resolution SessionLEANo solicitor unless parent has attorneyDiscussion by parent of complaint & factsDistrict opportunity to resolveDistrict & parent must waive in writing or agree to mediation to avoidWritten settlement agreement
Due Process HearingLimited to issues in noticeNo FAPE based on procedural flaws only if defects:• impeded child’s right to FAPE• impeded parent’s right to participate in decisions• caused deprivation of benefit
Within 3 Business Days of Agreement Execution
Either Side May Void
51
Donna S. Weldon, Esq.Keefer Wood Allen & Rahal, LLP
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108