Making Sense of Nonsense

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1 1 Making Sense of Nonsense Tips on Using Student Data to Create Defensible Educational Programs from a Legal Perspective Presented by: JACK B. CLARKE, JR. What We Will Cover Today: Preparing for the IEP Harmonizing the vocabulary talking about the student Just what is FAPE? A word about eligibility Dealing with the IEE or parentprovided data Trying to move to Yes (Be willing to gently disagree) 3 1

2 Preparing for the IEP Do a staffing Staffing or pre-meeting is legal (See J.L. v. Mercer Island Sch. Dist., 575 F.3d 1025, 1039 (9 th Cir. 2009) [We hold that the District did not commit a procedural violation of the [IDEA] in its pre-meeting. ] Do not make predeterminations Barry v. Las Virgenes Unif. Sch. Dist., 370 F.App x 847 (March 11, 2010) [Unpublished Decision] [A finding of predetermination is a per se denial of FAPE.] Get background materials showing you are using a peer-reviewed research-based curriculum. [IEPs are to be based upon peer-reviewed research to the extent practicable. 20 U.S.C. 1414(d)(1)(A)(i)(IV).] 4 For the Staffing: What is data? Teacher input: Anectodal information is useful Academic behavioral and functional performance Standardized testing Parent input: Independent assessments Medical information Concerns and compliance Service providers Discipline Issues Ask the teacher to bring information which shows progress Work samples Test scores Standardized testing Use percentages to show progress on goals; do not rely on vague terms like partially met Make a copy of the last assessment data and the last IEP and provide them to your staff, with instructions to read them before the meeting; Note any conflicts in the information you have Ask the obvious questions. Is the IEP being implemented as written? 5 For the Staffing: Generally discuss any points of concern regarding the student academically, behaviorally, functionally. Please remember Education Code section (a): (a) When developing each pupil's individualized education program, the individualized education program team shall consider the following: (1) The strengths of the pupil. (2) The concerns of the parents or guardians for enhancing the education of the pupil. (3) The results of the initial assessment or most recent assessment of the pupil. (4) The academic, developmental, and functional needs of the child. Identify IDEA issues and non-idea issues (e.g., District policies on issues -- such as transportation or bullying Identify clearly who will facilitate the meeting Consider using a matrix to help organize the data 6 2

3 based on facts. FAPE is special education and related services [34 C.F.R. Make sure there is general commonality on how the team sees the child. For example, is the disability mild, moderate or severe? Culling out opinions that can t really be established Ask: Does everyone have a working definition of FAPE? ] that are reasonably calculated to provide [Rowley, 458 U.S. 176 (1982)], and do provide, some educational benefit to the student [J.L. et al. v. Mercer Island School District, 575 F.3d 1025 (9 th Cir )] with a disability, in light of how the student s disability affects him or her [Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1121 (2d Cir. 1997)]. In the Least Restrictive Environment. 7 A Word About Eligibility Banquette Independent School District, 56 IDELR 307 (March 8, 2011) This was a dispute concerning whether a student had been properly identified under the correct eligibility criteria. The Administrative Law Judge stated: Nothing in this chapter requires that children be classified by their disability listed in section 1401 of this title and who, by reason of that disability needs special education and related services is regarded as a child with a disability under this subchapter. 20 U.S.C. 1412(a)(3)(B). * * * If the inquiry into a student s educational program begins and ends with the eligibility label then the mandates of the Act are not being met. IDEIA requires that a student s educational plan be individualized for the student, based on student s needs, not the student s eligibility classification. A bright line statement that special education must somehow look different for a student based solely on the student s eligibility classification is just as incorrect a premise as the statement that all children with a particular eligibility must require the same educational program. Both statements ignore the individual needs of the child and the reality of the school s mandate to provide an education that is individualized to meet student s s needs. 8 A Word About Eligibility Banquette Independent School District, 56 IDELR 307 (March 8, 2011) Be careful of this rule -- Especially regarding: Emotional Disturbance Autistic-like behaviors, Autism, PDD NOS 9 3

4 A Word About Eligibility Weissberg v, Lancaster School Dist., 53 IDELR 249 (Jan. 14, 2010) Case Summary A law requiring California's special education teachers to be certified to instruct students with particular disabilities helped a child's parents to recover attorney's fees in a dispute over his classification. Because the change in classification gave the child the legal right to instruction by a teacher with autism certification, the 9th Circuit held that the parents were prevailing parties. The court acknowledged that the child did not lose educational opportunities as a result of his misclassification. Although the district classified him as a child with mental retardation, his teacher had dual certification 20 U.S.C. 1415(i)(3)(B), on behalf of their child in mental retardation and autism. However, the court pointed out that the misclassification could have resulted in the child being instructed by a teacher who did not have autism certification. "Although [the child] did, in fact, receive placement in the proper classroom, the school district refused to recognize his additional primary disability of autism, and thus his legal right to such a placement, until his eligibility category was changed," U.S. Circuit Judge Harry Pregerson wrote. Concluding that the change in classification altered the parties' legal relationship, the 9th Circuit ruled that the parents were prevailing parties for purposes of attorney's fees. The 9th Circuit also held that the child's representation by his grandmother, a practicing attorney, did not preclude a fee award. The court acknowledged its prior decision in Ford v. Long Beach Unified School District, 46 IDELR 92 (9th Cir. 2006), that attorney-parents cannot recover fees for representing their own children in IDEA actions. However, the court explained that the bright-line rule was adopted to ensure that students had objective representation. Reasoning that grandparents and other relatives "are not so uniquely invested in IDEA proceedings," the 9th Circuit held that the fee restriction adopted in Ford does not apply to relatives other than the child's parents. Special Ed Connection Case Report 10 : An Analytical Approach Which Will Help You Services & Placement Measurable Goals & Objectives Unique Needs Areas of Deficit Assessment Data, Observations, Work Product 11 How to deal with parent provided data: 1. We must consider all parent-provided information. (See e.g., 34 C.F.R (c) [Parent initiated evaluations].) 2. Don t panic if it is a surprise, take some time to review it. Then, if you can, consider reconvening, but only if you really have to reconvene. 3. You are not bound by parent provided data but you must consider it, whatever it may be. 4. Now, please remember that a finding of a deficit does not necessarily equate to a unique need. Also, look to see if the parent data is based on a clinical model. E.g., Moreno Valley Unif. School Dist., CA SEA / and

5 How to deal with parent provided data: Moreno Valley Unif. School Dist., CA SEA / and At hearing, Ms. Linett [the District O.T] elaborated upon her recommendations. She stated that she felt that Student had met his goals from the July 16, 2008 IEP. Her assessment revealed no sensory processing issues were affecting Student s ability to benefit from his educational program. Compared to typically developing peers, he acted very much like average middle school boys as far as his sensory modulation skills At hearing, Ms. Schlotman, a supervising occupational therapist from School Options, testified regarding the School Options report and Ms. Linett s report. Ms. Schlotman holds a B.A. in Psychology from San Diego State University and an M.S. in OT from San Jose State University. She has been licensed as an OT in California for approximately 6 years, and has been working in the OT field since Ms. Schlotman did not write the School Options report, and was not listed as an evaluator in the report, but she testified that she participated in the clinical portion of the evaluation. 13 How to deal with parent provided data: Moreno Valley Unif. School Dist. (Cont d.) 109. Ms. Schlotman testified that the School Options report demonstrated that Student had sensory processing and sensorimotor deficits, and that these would affect his abilities to attend, his ability to follow directions in the classroom, and his need to rely on teacher interventions in performing tasks. She acknowledged that modifications, such as giving directions in different ways, could ameliorate Student s need to clarify teacher directions. She acknowledged that, as of November 2008, Student could attend to a task for 20 minutes, with accommodations. She criticized Ms. Linett s assessment as incomplete, and criticized that Ms. Linett obtained much of the information in the report by interviews and other reports. She acknowledged that talking to the teacher was important during an assessment, while admitting that she did not know whether School Options had interviewed Student s teachers at MIR. She did not believe that Ms. Linett s observations related to Student s sensory modulation skills, and criticized Ms. Linett s OT services, based upon Ms. Linett s notes as being more evaluative than providing therapy. She testified that Student could benefit from OT services, but she was unaware of the legal standard for providing a FAPE, and was not familiar with the term accessing the curriculum She also did not know how Student was performing academically at MIR. 14 How to deal with parent provided data: Moreno Valley Unif. School Dist. (Cont d.) The evidence demonstrated that, at all relevant times, the District had been providing the Therapeutic Listening program to Student. Based upon Findings of Fact numbers 1 through 17, 26 through 37, 50 through 76, and 92 through 115, and Legal Conclusions numbers 1 through 20, 21 through 27, and 54 through 67, the District did not deny Student a FAPE by failing to provide the level of OT services recommended in the School Options report. 15 5

6 How do we approach IEE recommendations? Confidential Report, Comprehensive Neuro-Educational Evaluation Dr. Glenda Thorne, an expert in memory, has identified the following 10 strategies to help improve memory ability in children: 1. Give Directions in Multiple Formats.[ ] 2. Teach Students to Over-learn Material. [ ] 3. Teach Students to Use Visual Images and Other Memory Strategies. [ ] 4. Give Teacher-Prepared Handouts prior to Class Lectures (or Lesson Plans).[ ] 5. Teach Students to be Active Readers. [ ] 6. Write Down Steps in Math Problems. [ ] 7. Provide Retrieval Practice for Students. [ ] 8. Help Students Develop Cues When Storing Information.[ ] 9. Prime the Memory to Teaching/Learning. [ ] 10. Review Material Before Going to Sleep. [ ] (p.57 of 62 and 58 of 62.) The IEP team should consider which of the above 109 strategies would be most appropriate for [Student]. 16 What Will Using Such Recommendations Looks Like in the Real World? Remember methodology is left to instructional staff. As long as a school district provides an appropriate education, the question of methodology is left up to the district's discretion. Board of Education of Hendrick Hudson Central School District v. Rowley (1982) 458 U.S Thus, those recommendations won t necessarily change the IEP at all! 17 Consider using this type of language in the notes: The IEP team reviewed the recommendations of the independent assessors. After discussion, the consensus of the team was that the IEP did not need to be modified to provide a FAPE. Parent [agreed or disagreed]. 18 6

7 Also, remember this rule: In resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district s proposed program. (See Gregory K. v. Longview Sch. Dist., (9 th Cir. 1987) 811 F.2d 1307, 1314.) A school district is not required to place a student in a program preferred by the parent even if that program will result in greater educational benefit to the student. (Ibid.) [See, Whittier City Sch. Dist., 111 LRP (November 28, 2011).] 19 The value of the Gregory K. rule is that the parents desire to get something better is not the standard. But at the IEP, discuss why parents request would not be in the child s best interests. Discuss, for example, the effect of parents request on: LRE Loss of opportunity for instruction Loss of opportunity for peer interaction Delays in creating independence 20 Conclusion To avoid the non-sense: Make sure the IEP team is speaking the same language concerning the student. Do staffings for the high profile IEP. Review parent-provided data objectively. You are not required to follow it. But try to find information in it which might help the educational process for the child. 21 7

8 Thank you for coming! Presented by: Jack B. Clarke, Jr. 8

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