how to serve children with disabilities in a compliant manner

How to Serve Children with Disabilities in a Compliant

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Erin Auerbach [email protected] [email protected] & Manasevit, PLLCSpring Forum 2014

Topics Covered

• Discipline• Response to Intervention • IEP Teams• Documentation • Payment for related services and residential treatment

BRUSTEIN & MANASEVIT, PLLC

Legal Resources

• IDEA Website - http://idea.ed.gov/

• Code of Federal Regulations: 34 CFR Part 300 • http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title34/34cfr300_

main_02.tpl• http://idea.ed.gov/download/finalregulations.pdf


DISCIPLINE


Disciplinary Options 34 CFR §§ 300.530 – 300.536

What to do when a child is disciplined:1. Is the child identified as a child with a disability?

• NO = No IDEA protections. (34 CFR § 300.534(d)).• Has an evaluation been requested after or during discipline?

• If yes, then expedited evaluations• Stay Put does not apply. Child remains where placed by the LEA.

• YES = Determine if Change of Placement• No, but the public agency had knowledge that the child was a

child with a disability before the behavior occurred = Determine if Change of Placement. (34 CFR § 300.534(a-b)).• Parent expressed in writing to supervisory or administrative personnel, or a

teacher of the child, that the child is in need of special education and related services

• Parent requested an evaluation• School personnel expressed specific concerns to the director of special

education or other supervisory personnelBRUSTEIN & MANASEVIT,

PLLC

Disciplinary Options (con’t) 34 CFR §§ 300.530 – 300.536

2. Was the Removal a Change of Placement?• Based on “Unique Circumstances of Child” (34 CFR §

300.530(a))

• Removal ≠ change of placement (34 CFR § 300.536)

• 10 consecutive school days or less• Series of short-term removals that are not a pattern

(even if greater then 10 days) • Determined by the public agency, but subject to review through

due process (34 CFR § 300.536 (a)(2))

• Length of each removal; • Total time removed;• Proximity of removal;• Behavior not substantially similar; etc.



• Removal = change of placement (34 CFR § 300.536)

• Exceeds 10 consecutive school days• Series of short-term removals that are a pattern • 45-day removal – drugs, weapons, serious bodily

injury to another (34 CFR § 300.530(g))

• Hearing officer removal - 45-day removal requested by LEA through due process bc substantially likely to injure self or others in current placement (34 CFR § 300.532)

• Parent Notification (34 CFR § 300.530(h))BRUSTEIN & MANASEVIT,

PLLC

Disciplinary Options (con’t) 34 CFR §§ 300.530 – 300.536Change of Placement?

• No: Done (document decision) (possible exception 34 CFR § 300.530(d)(4))

• Yes: Manifestation Determination (34 CFR § 300.530(e)); • Functional Behavior Assessment; and• Behavior Intervention Plan (34 CFR § 300.530(d)(1)(ii),

(f)(1)(i))



3. Was the behavior a Manifestation of the Child’s Disability? (Decided By IEP Team)• No – Stay Put does not apply (300 CFR § 300.530(c))• Yes – Manifestation Determination (300 CFR § 300.530(f))

• Stay Put: Child Remains in School • Exceptions 45-Day Removal


Disciplinary Options (con’t) 34 CFR § 300.530(d)(4) & (d)(5)

4. Are services required?• If not a change of placement: MAYBE• 10 day rule: no services required for first 10 school days of

disciplinary removal in school year• LEA can always decide to provide services even when not

required • “So as to enable the child to continue to participate in the

general education curriculum, although in another setting, and progress toward meeting goals in child’s IEP”

• If a change of placement: YES (34 CFR § 300.530(d))• IEP team decides on services (allow child to continue to

participate in general education curriculum, although in another setting and progress on IEP); services mandatory

• Exception: 45 day removal BRUSTEIN & MANASEVIT, PLLC

Best Practices

• Written policies and procedures• Staff training on policies and procedures• Regular communication between special education

department and administration (or staff responsible for discipline)

• Established forms and form letters


Expedited Hearing Timeframes

WHEN? (34 CFR § 300.532)• Parent Appeals Manifestation Determination• LEA Requests 45-day removal by hearing officer

• Timeframes• Hearing – 20 school days of date complaint filed• Resolution meeting (unless waived) w/in 7 days of date complaint notice

received• Hearing proceeds, unless matter resolved w/15 days of date complaint

received• Decision – 10 school days after hearing

PLACEMENT DURING APPEAL (34 CFR § 300.533)• The child must remain in the alternative education setting pending the

decision of the hearing officer or until the expiration of the 45-day placement or disciplinary action, whichever occurs first.


Discipline and Civil Rights• “[E]vidence of significant disparities in the use of discipline

and aversive techniques for students with disabilities raises particular concern for the Departments.” • IDEA-eligible students represent 12% of all students, but 19% of

students suspended in school, 20% of students receiving out-of-school suspension once, 25% of students receiving multiple out-of-school suspensions, 19% of students expelled, 23% of students referred to law enforcement, and 23% of students receiving school-related arrest. Additionally, SWDs under IDEA and 504 represent 14% of students, but represent 76% of students who are physically restrained by adults in their schools.

• See ED’s Civil Rights Office and DOJ Guidance, January 2014BRUSTEIN & MANASEVIT,

PLLC

Response to Intervention (RTI)


Response to Intervention (RTI)• Process for determining that a child is a child with a

specific learning disability based on a child’s response to scientific, research-based intervention.

• Why is RTI included in IDEA?• To ensure that underachievement in a child

suspected of having specific learning disability (SLD) is not due to lack of appropriate instruction• Congress included this in hopes that it would, more

accurately, distinguish between children who truly have SLDs from those whose learning difficulties could be resolved with more specific, scientifically based, general education interventions.


RTI (cont.)

• What about RTI for determining other disabilities?

• “The undersigned concludes that Respondent’s use of the SIT, which is Respondent’s version of RTI, however well-intentioned, did not relieve Respondent of its obligations (a) to evaluate the Student for other IDEA disabilities, such as Other Health Impairment, including ADHD; (b) to use a variety of assessment tools; and (c) to complete the evaluation within the timeline established by IDEA and its implementing regulations.”


RTI (cont.)

• If you use RTI Strategies, LEAs must promptly request parental consent to evaluate a child if the child has not made adequate progress after an appropriate period of time.• However, the regulations do not specify a timeline for

using RTI or define “adequate progress.” • ED says it varies depending on the specific circumstances in

each case. • Generally not acceptable to wait several months

*Parent may request an evaluation at any time during the RTI process (RTI does not replace evaluations)


RTI (cont.)

Allowable uses of IDEA funds for RTI:•CEIS funds may be used in coordination with ESEA funds, but must supplement and not supplant ESEA funds for those activities and must not support students already identified as students with disabilities (IDEA ARRA guidance)•CEIS funds may be used for behavioral interventions for non-identified students who need additional support, as part of school climate reform (ED Letter, Sept 2013 on maximizing flexibility) •If IDEA consolidated in schoolwide plan, may use consolidated IDEA program funds to implement RTI (IDEA ARRA guidance)


Best Practices• Written policies and procedures (including definitions of

“adequate progress” and “appropriate period of time”) • Training to staff on policies and procedures

• Provide some training even to staff not directly involved• Regular communication between RTI staff and Special

Education Department• Clear communication to parents regarding what RTI is and

their child’s progress• Take RTI meeting notes


IEP TEAM MEETINGS


Types of Meetings

• Eligibility• IEP Development • Annual • MDR• Other


Responsibilities of IEP Teams• Review evaluations and data• Determine eligibility• Develop IEP

• Placement• Services• Supports

• Review IEP annually and when necessary• Manifestation determination when necessary

• Appropriate services if a change in placement is warranted• Address other concerns as need arises


IEP Team Members34 C.F.R. § 300.321

• Core members• Parent• At least 1 regular ed

teacher, if child participating

• At least 1 special ed teacher/provider

• LEA representative• LEA can designate

member• Individual who can

interpret evaluation results

• May be required• Individuals with special

knowledge or expertise on child

• Related services personnel• Child, when appropriate• Invite transition service

agency representatives• Invite Part C service

coordinator/rep, if parent requests


Who Can Miss an IEP Meeting?

• Required members may be absent:• For all or part of meeting, if• LEA and parent agree in writing

• Meeting without parent:• Permitted, but need documentation of attempts to arrange mutually

agreed on time and place. 34 C.F.R. § 300.322(d)


What is Needed if a Member Misses an IEP Meeting?

• If the missing IEP team member’s area or related service is not modified or discussed• No input is needed

• If the missing IEP team member’s area or related service will be modified or discussed• Member must provide written input on development of the IEP prior to

the meeting


Best Practices• Written policies and procedures• Training staff on policies and procedures• Ensure an LEA representative with decision making authority

is present • Hold meeting if a new concern arises or services change –

don’t wait for the annual review meeting• Maintain documentation

• Meeting invitation• Attempts to schedule meeting (if no parent)• Written input if appropriate • Meeting notes


DOCUMENTATION


“I’m a hoarder. For me, documentation has always been key, and I’ve kept everything from my past.”– Diane Keaton


The Basics• IEPs• Evaluations• Meeting Notes• Service Tracking Logs

• See EDGAR 76.731 (grantees and subgrantees must maintain records to demonstrate compliance with all program requirements)

• Where and how are these documents maintained?


Prior Written Notice34 C.F.R. § 300.503

• Must be given to parents if the LEA proposes or refuses to initiate or change the following:• Evaluation of a child,• Identification of a child,• Educational placement of a child, or• Provision of FAPE to a child.

• Notice Must Include: reasons for action or refusal and include available procedural safeguards


Progress Data • Progress Reports

• Detailed information on progress (or lack of progress) on each goal

• How often?• Testing Data

• State Tests• Academic Achievement


Behavior Data• Behavior tracking logs• Behavior Intervention Plan• Incident Reports• Suspension/Expulsion records • Letters re: Discipline

• Align general disciplinary communications with IDEA requirements

• Clearly indicate what the process is for students with disabilities


Communication with Parent

•Letters•Phone Log•Emails


Transmitting Student Records

• Generally, follow Family Educational Rights and Privacy Act (FERPA) • Except if student transfers to a private school

• LEA must obtain parental consent prior to releasing personally identifiable records to the private school

• Parent request for student records• SEA/LEA has 45 days to respond• If third party (attorney/advocate) is requesting records , must have

release signed by parents• What must be provided?


Best Practices • Written policies and procedures

• What must be retained?• Where are records retained?

• Training staff on policies and procedures• Established forms and other documents• Monitoring records and data


Payment for Related Services and Residential Treatment


Related Services • Transportation, developmental, corrective and other

supportive services required to help a disabled child benefit from special education • Includes: interpreting services, physical and occupational

therapy, speech-language pathology and audiology, counseling, therapeutic recreation, etc.

• Excludes: surgically implanted medical device or replacement• 34 C.F.R. § 300.34


To determine whether a service is a related service, courts will consider:

1. whether the service is required to enable the child to receive an educational benefit, and

2. if it is excluded as a medical service.


• If the court determines that the service is required for the student to receive an educational benefit and does not fall within the medical exception, it becomes the responsibility of the public agency to provide the service to the student.

• Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980) (finding that Clean Intermittent Catheterization (CIC) fell within the statutory definition of related services because without CIC the child could not be present in the classroom at all and thus could not benefit from her special education).


• Where a service is not educational in nature and does not impact the student’s ability to benefit from his or her education, such service would not be considered a related service that a District would have to provide under the IDEA.

• Fetto v. Sergi, 181 F. Supp. 2d 53, 60 (D.Conn. 2001) (hearing officer found that several wrap-around services, including respite care in the home and a community mentor, were not educational in nature and therefore the District was not required to pay for such services)

• District of Columbia Public Schools, 110 LRP 30885 (July 30, 2009) (hearing officer found that wrap-around services, including counseling and community support services were required for student to be successful in attending school and obtaining an educational benefit)


Residential Treatment • In the context of residential placements, where a related

service is necessary for an educational purpose, it is reimbursable under the IDEA. Where the related service has a predominantly medical purpose, it is not reimbursable. • Kruelle v. New Castle County School District, 642 F.2d 687 (3rd

Cir. 1981); 34 C.F.R. 300.104. • Courts have found that where the requirement for a

residential placement based on medical, social or emotional problems is segregable from the learning process, the residential treatment was for a medical purpose and therefore not reimbursable. • Mary T. v. Sch. Dist. or Philadelphia, 575 F.3d 235 (3rd Cir. 2009)

(citing Kruelle, 642 F.2d 687).BRUSTEIN & MANASEVIT,

PLLC

• Educational Benefit: is the IEP likely to produce progress, not regression, and does the IEP afford the student with an opportunity greater than mere trivial advancement?

• M.K. ex rel. Mrs. K v. Segri, 554 F. Supp. 2d 201, 222 (D.Conn. 2008) (the student had significant behavior problems at home but continued to make satisfactory academic progress in school, the court found that the student’s residential placement was not a related service for which the school district could be held financially responsible)

• Mrs. B. v. Milford Bd. of Educ., 103 F.3d 114 (2d Cir. 1997) (the student’s academic regression was primarily due to student's emotional issues which could not be dealt with outside of a residential setting, the court found that the District was required to pay for the entire cost of the student’s residential placement)


Best Practices• Written policies and procedures• Training to staff on policies and procedures • Continuum of services • State/District policies on high cost/highly restrictive services


This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.


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