PowerPoint - Special Education

© 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.

SPECIAL

EDUCATION

Neal TakiffBrooke WhittedWHITTED CLEARY & TAKIFF LLC


“EDUCATION”

•FREE

•A PPROPRIATE

•PUBLIC

•EDUCATION

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FREE

• NO CHARGE TO• STUDENT OR HIS ESTATE• PARENTS OR GUARDIAN• PARKS V. PAVKOVIC:

“FREE MEANS FREE”• IRRELEVANT WHO’S PAYING


APPROPRIATE• ROWLEY CASE: ACCORDING TO

EACH STUDENT’S UNIQUE NEEDS• THE HOLDING OF ROWLEY• THE TWO ROWLEY QUESTIONS:

– “PROCEDURAL” QUESTION– “SUBSTANTIVE” QUESTION

• WHAT DOES ROWLEY SAY MUST BE MAXIMIZED IN EVERY CASE?


PUBLIC

• PROVIDED–OR--

• PAID FOR–BY--

• A PUBLIC SCHOOL DISTRICT(LOCAL EDUCATION AGENCY “LEA”)

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EDUCATIONTHE ROWLEY CASE – ESTABLISHING EDUCATIONAL BENEFIT• Standard for Special Education Services – “Some educational benefit”

-Not a MAXIMAZITATION, not the bare minimum-Not a “Cadillac,” just a serviceable “Chevy.”

• Two-Prong Legal Analysis

1. PROCEDURAL: Has the district complied with the procedural requirements of the Act?

2. SUBSTANTIVE: Is the IEP “Reasonably Calculated” to confer educational benefit?

• Procedural Violation – Must result in a deprivation of educational opportunity in order to be actionable.


Education II

• Disability category should NEVER drive services

• IEPs must be individualized – Districts must NEVER state that they provide “set” services or that they “don’t provide” a requested service.

• “Consider” all requests – Even under Lachman


PRACTICAL APPLICATION OF

SPECIAL

EDUCATION LAW


The Process of Obtaining Special Education Services

• Child Find responsibilities – affirmative duty• Referral for initial Case Study Evaluation (CSE)

– May be made by a parent, employee of school district, ISBE, another State agency, or a community service agency

– RtI does not delay district’s need to respond to a parent request for CSE


Response to Intervention

• A word about RtI….



• District has 14 days to respond to parents requesting case study evaluation– Parents can request a due process hearing to

contest district’s refusal to conduct CSE– If District agrees, parent must sign consent for

evaluations (domain meeting)– Date parents sign, starts the 60 school day

timeline


Is a Denial of a CSE Justified?

• Grades• Behavior• Peer relationships• Emotional well being• Attendance• Home Issues• Court Involvement• Drug and Alcohol Issues• Hospitalizations



Isolated Incidents: Two suicides not enough when behavioral assessments within the average range, depression in remission, no difficulties with peers or teachers, above-average grades St. Joseph-Ogden Comm. H.S. Dist. No .305 v. ISBE, 49 IDELR 125 (Jan 17, 2008).

Medical diagnosis has to constitute a disability under the IDEA , mere medical diagnosis does not qualify)(Alopecia Areata). Bloom Township HS Dist. 206, 112 LRP 21291 (April 23, 2012



“Educational performance” means more than a child’s ability to meet academic criteria. It must also include reference to the child’s development of communication skills, social skills, and personality, as the Code, itself, requires. 34 CFR 300.533(a)(1); Mary P. v. ISBE, 919 F. Supp. 1173 (N.D. Illinois 1996).

Truancy does not automatically exclude special education. Emotional disturbance should be evaluated independently.

Drug and Alcohol Issues: Can be self-medication of underlying emotional issues.



• Conference is then held to determine eligibility

• If eligible, an IEP is written for the child within 30 days of eligibility determination

• Initial placement decision made• School must wait 10 days before

placement and services are made (parents can waive this waiting period)


Least Restrictive Environment

• What is LRE?• What is the range of educational

placements?• Mainstreaming? Inclusion? Is it required?

When?• What is the test according to the 7th

Circuit?


7th Circuit Test

• “The Act itself provides enough of a framework for our discussion; if Beth's education at Lake Bluff Middle School was satisfactory, the school district would be in violation of the Act by removing her. If not, if its recommended placement will mainstream her to the maximum appropriate extent, no violation occurs.”


Satisfactory?

• Time in class• Progress in goals• Where is learning occurring• Behaviors• Accessing curriculum/mainstream

environment


TDS vs. Home School

• Can the student’s needs be met in the mainstream (home school) setting, i.e. will they get a satisfactory education?– What benefit will the child receive from access

to non-disabled peers– Can they access that benefit– What level of related services does the

student need


TDS vs. Home School

– Does the district have the appropriate educational services to meet the students needs (life skills, multisensory classes, autism services)

– If already in special education, have they met their goals and objectives

– Private evaluations? Recommendations?– Discipline, attendance (school refusal anxiety)

• In school stronger evidence than out of school…


How Do You Define Progress?Making Sure the IEP is Implemented as Planned

Goals must be measurable

Progress updates

Annual reviews

Reevaluations

Drafts of reports/goals

School Observation


Goals



• Annual review of IEP• Three year re-evaluation• Transfer Students

– Must provide comparable services until the district adopts prior IEP or develops, adopts and implements a new IEP


DUE PROCESS PROCEDURES

I. REQUEST MUST BE IN A CERTAIN FORMATII. IN WRITING, TO THE SUPERINTENDENTIII. RESOLUTION SESSION – W/IN 15 DAYS

LAWYERS? NO LAWYERS?? ADVOCATES? WAIVER IN FAVOR OF MEDIATION? SESSION MUST INCLUDE:

PARENTS DISTRICT REPRESENTATIVE WITH

AUTHORITY MEMBERS OF THE IEP TEAM “HAVING

KNOWLEDGE OF THE HEARING REQUEST”


DUE PROCESS II

I. PARTY RECEIVING REQUEST HAS 15 DAYS TO OBJECT TO ITS SUFFICIENCY

II. HEARING OFFICER DETERMINES IF THE REQUEST MEETS LEGAL REQUIREMENTS

NOTICE AND TIMING: WHY IMPORTANT??ANSWER: ROWLEY LIVES!


RESOLUTION SESSIONS AND MEDIATION

INFORMAL, SUPPORTIVE ATMOSPHERENO GANGING UP ON ANYONE; BE POSITIVEHAVE SMALLEST POSSIBLE # OF PEOPLEONE EXPERT WILL DO; PICK THE CALMESTAVOID VERBAL DIARRHEAIF LAWYERS HAVE TO BE THERE, IT’S GOOD DISCOVERY


PREPARATION FOR HEARINGS

I. YOU USUALLY NEED LAWYERS HERE: IT’S LITIGATION!

II. BETTER TO PREPARE WITNESSES INDIVIDUALLY, NOT IN A GROUP

III. START OUT NICE, GET NASTY ONLY IF NECESSARY

IV. ALWAYS BE OPEN TO SETTLEMENT: FOCUS ON THE STUDENT (HEARINGS ARE ONLY FUN FOR LAWYERS)


BUCKHANNON and WINKLEMAN

BUCKHANNON [532 US 598 (2001)]:PARENTS HAVE NO RIGHT TO COLLECT

EXPERT FEES UNDER THE HCPA(NOTE: THIS WAS NOT AN IDEA CASE – IT WAS ADA)

WINKLEMAN v. PANAMA CITY (2007)PARENTS CAN REPRESENT THEMSELVES

IN IDEA ACTIONS WITHOUT A LAWYERWHY IS THIS CASE CONSISTENT WITH ROWLEY?


INVOLVING THE JUVENILE JUSTICE SYSTEM

WHEN IS THIS APPROPRIATE?I. FOR PARENTS – JUVENILE COURT CAN

PRESSURE THE SCHOOL DISTRICT

II. FOR DISTRICTSA. SOMETIMES YOU HAVE NO CHOICE, BUT FOR ASD

STUDENTS SHOULD BE DONE AS A LAST RESORT AND ONLY VERY SPARINGLY;

B. GOOD WAY TO GET A QUICK CHANGE OF PLACEMENT: BY JUDGE’S ORDER, OVER THE OBJECTION OF THE PARENTS (USEFUL IN “FULL INCLUSION” SITUATIONS)


EXTENDED SCHOOL YEAR

• BIXBY CASE CONSIDERATIONS:– DEGREE OF REGRESSION SUFFERED IN THE PAST;– PARENT ABILITY TO PROVIDE HOME STRUCTURE;– CHILD’S RATE OF PROGRESS;– SPECIFIC BEHAVIORAL AND PHYSICAL PROBLEMS;– AVAILABILITY OF ALTERNATIVE RESOURCES;– AREAS OF PLAN THAT NEED CONTINUOUS ATTENTION;– VOCATIONAL NEEDS OF THE CHILD;– WHETHER THE PROPOSED SERVICES ARE

“EXTRAORDINARY” FOR THE CHILD’S CONDITION– EXACT TIME AND SCOPE OF PAST REGRESSIONS


COMMON MISTAKES

1. POOR USE OF INTERPERSONAL SKILLS2. NO FOLLOW-THROUGH3. NOT ADMITTING YOU WERE WRONG4. CATEGORICAL TREATMENT (“WE DON’T DO THAT”)

5. ZERO TOLERANCE POLICIES (LAWYER’S DREAM)

6. REFUSAL OF MANDATED SERVICE7. GRAPHIC PROCEDURAL VIOLATIONS8. SECRETIVE OR “CLOSED DOOR” CONDUCT9. TOO MUCH TALKING (THE PARENT DISEASE)10. GREED, AVARICE, SLOTH, GLUTTONY…..


Compensatory Education

• What is it?• Examples of awards?• Is it authorized by IDEA?• When is a student eligible?• How is amount determined?• Can it be awarded beyond a student’s 22nd

birthday?• What about stay put?


QUESTIONS?

THANK

YOU!