Special Educator Summaries Volume 29, Issue 16 February 21, 2014

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1 Special Educator Summaries Volume 29, Issue 16 February 21, 2014 Article: Does nonverbal child s use of ipad at home indicate need for AT assessment? The parents of a child with autism and other cognitive deficits informed the IEP team in early 2012 that their nonverbal child was using an ipad at home with success, even though it was for entertainment. The IEP team did not discuss the issue or assess the child s AT needs. During the next year, and the parents had a private assessment done. The parents filed a due process claiming that FAPE had been denied because the district had not assessed the child for AT after the meeting in 2012, so the child lost a year of learning and communicating. The ALJ determined that the district should have assessed the child after learning of his ability to use the device at the meeting of 2012 so he could have learned to use an itouch to communicate across settings. Article: Sen. Harkin ups ante on bill, proposes exception to IDEA exhaustion rule Sen. Tom Harkin from Iowa proposed allowing restraint and seclusion ONLY if the IEP explicitly allowed it in his last attempt to get a bill on the matter passed before his retirement. The bill also dealt with allowing parents to seek a due process resolution of a restraint and seclusion issue and also take civil action. He had no cosponsor, and at least 60 votes are required. Some say this would be good for families that have had their case dismissed because of the exhaustion of administrative remedies requirement. An attorney states that the present protocols for seclusion and restraint are not sufficient, and parents should be allowed to pursue civil action. The deputy executive director of NASDSE feels that this is important enough to make an amendment to IDEA. Other officials believe that this would cause backlogs in court and cost more in long run. Article: Help staff recognize when student requires special ed Even though a second-grader received many special programs and labs to help him progress for two years, he was still struggling. The parents filed a due process complaint claiming a child find violation. Follow these suggestions to prevent this in your district: Make sure colleagues know when it is time to move from RTI to special ed. Collect as much data as possible and compare grade-level expectations and peers. Communicate with the parents to know what they see at home and what they expect. Always keep the parents informed. Article: Fulfill IEP team responsibilities when students are bullied A school s anti-bullying policy may not fulfill FAPE requirements if the victim is a child with a disability. If the victim is, IEP teams should follow these steps: Convene an IEP meeting to determine the impact of bullying on the student s ability to receive meaningful educational benefit from his IEP. Determine if an evaluation is necessary to gather information. Address whether additional or different services are appropriate in the IEP. Consider if the child s placement is still appropriate. Send prior written notice to parents outlining any IEP changes. Notify and train staff of any changes to the child s IEP. Comply with Section 504 responsibilities regarding harassment. Address problem behaviors before they turn into bullying, harassment. Respond to parents request for private placement for the bullied child. Article: Q & A: Who has child custody? Question: What s the difference between custody and guardianship? Custody pertains to children under the age of 18.

2 Guardianship is for anyone not able to care for himself between the ages of 3 and 22 (for school purposes). Question: If you have two divorced parents who do not agree and one requests to revoke special education services, are we obligated to remove thos services? And them, when the other parent refers the student for an evaluation again, are we obligated to evaluate? Yes, and if this is a continuous cycle, there may be a time when family court or protective services gets involved. Question: In the case of a parent sending an advocate in his place, can the advocate consent for the parent? What if we have one parent s consent, but not the other parent s? No. A parent must consent. If joint custody is in the court order, but doesn t designate one parent, then either can sign. Question: If parental rights are in the process of being severed for a student in foster care, who gives consent? If a court or state agency has designated the foster parent, they may sign, but only then. Question: Can we accept a notarized document from a biological parent releasing custody to a foster parent? No. Under IDEA, only a court or state agency can designate a foster parent. Question: Are there any legal rights about a child s education for the non-biological, live-in parent? Not unless it is in a court order. Question: Can we release information over the phone without proper documentation if a parent calls to request an initial assessment of her child or requests follow-up information regarding an in-progress assessment of her child? No. Identification is necessary. If there is a question as to who is doing the requesting, have them meet you with ID. Question: Do we need to give notice to one parent that we are releasing educational records to the other parent? If something seems inflammatory, how do we handle sharing the information? This is not a legal requirement, but probably a good idea unless it may endanger the student or parent. Question: Do documents such as the IEP and evaluation reports need to be automatically sent to a noncustodial parent who retains the right to review educational records, or just made available if the noncustodial parent makes the request? If it is requested, then it should be provided. Article: GOP makes new push for voucher, including change to proportionate share A bill was proposed that would allow parents more educational choices through vouchers. This bill would allow parents of those students with IEPs to use IDEA money to increase the voucher value. Another proposed bill would develop a voucher system for low-income students for the entire nation, regardless of other programs. Some officials fear that these bills would ruin the relationship by exchanging services for cash when it comes to IDEA s proportionate share. Parents accepting these vouchers would be also accepting this as filling the requirement of providing FAPE to their child. Article: DOJ proposes rule to implement Titles II, III of ADA Amendments Act After five years, the Justice Department is working to implement Title II and III of the ADA Amendments Act, which was enacted in This law was to change the overly restrictive view of the ADA from 1990 which was involved in employment, part of Title I. This also changes how government programs and public accommodations are handled. Schools have carefully noted changes in what constitutes a major life activity, which the new law expands to include reading and thinking. This new law expands the limits of the term substantially limits when determining disabilities. Section 504 programs will be affected. This law also enables postsecondary students with ADD or other learning disabilities to have extra time to complete tests. Article: Devise agendas that will capture parent concerns, avoid sideways meetings

3 When arranging IEP meetings, follow these helpful hints for developing your agenda: Capture parents concerns. Send a draft of the agenda to the parents prior to the meeting for parents to review. Allow parents to ask questions and add their input. List order that team members will speak. Just state who will address which items. Stay on course with agenda sections. Don t allow a parent or service provider to jump ahead to other sections. Review meeting expectations. Remind everyone at the beginning of the meeting of the ground rules. Customize agenda. Parents may need the agenda in their native language to get the best benefit. Include sections for input from general education teachers. Don t overlook them. Avoid setting time limits. Watch for signs that it is time to take a break or stop and reconvene at a later date. Article: Clear up confusion at IEE rights, responsibilities These tips will help prevent due process hearing pertaining to IEEs: Parents are entitled to one IEE at public expense each time there is an evaluation done that the parents don t agree with. This can be stopped if the district requests a due process and shows that their evaluation was appropriate. Review new guidance with relevant staffers. When new guidance on IEEs is introduced, meet with staff and review it so everyone has the same information and understands the new rules. Ask counsel for clarification. The district s counsel is available for further discussion if there are questions. Don t wait until there is an error to ask for more clarification of districts rights and duties. Article: Find ways to conduct IEP meetings when parents have restraining orders When two parents are not allowed to be in the same room due to a court order, get creative so the IEP meeting can proceed. Here are some suggestions: Phone call conference at the IEP meeting. Check first to see if this is allowed. Convene two meeting for each parent. Use this only when a court order states that the two parents may not be in the same room. Allow advocate in place of parent. One parent can consent, in writing, to have an advocate attend and be given the information. The advocate may not sign for the parent. Article: Parent s home district responsible for incarcerated adult s IDEA services Each state may need to check their special education code to see if it states that the district of residency of the parent is responsible for providing FAPE to incarcerated year-olds. In California, the Supreme Court made this ruling in December of 2013, but this impacts many states. Article: District s responsiveness to bullying nixes parents claim for private tuition. The parents of a Pennsylvania student with an SLD and other disorders filed a claim for denial of FAPE, but the IHO determined the district responded to each complaint of bullying appropriately. The parents of the student claimed their child was verbally or physically harassed at school. The district was proactive in its process of addressing each claim and even rearranged classes of students who allegedly did the bullying. The request for tuition reimbursement was denied. Article: Performance in nonacademic courses disqualifies teen for IDEA services A high school student with autism participated in the classes of Web design, personal finance, drama, and broadcasting and passed them all, but his parents claimed he should be eligible for IDEA services. The Idaho districted disagreed, stating that there was no need of special education because the courses taken showed the student had overcome his difficulties and could engage in the general education setting to receive educational benefit. The court ruled for the district.

4 Article: File note on student s visual impairment fails to satisfy FAPE obligations A student with a cortical visual impairment had an IEP that didn t mention the impairment, so the court took little time in concluding that FAPE was denied. The district stated that there was a note in the student s file regarding the vision impairment, but teachers were unaware of the impact it had on the student s education. The Texas District Court ruled that FAPE was denied. Article: Offer of intensive reading instruction meets needs of teen with dyslexia The district that a 16-year-old with dyslexia attended created an IEP that met the needs of the student, but the parent of the student believed the student would get more educational benefit if she attended a private school. One of the experts the parent brought in did not understand the IEP and the other had not read it. An administrative decision for the district was upheld by the court. The court reminded the parent that the basic floor of opportunity standard was met and FAPE was not denied, so private tuition reimbursement was denied. Article: Aggression, disruptiveness, justify less than full-time gen ed placement The extent of an autistic student s behavioral issues determines the LRE placement. This student had a history if verbal and physical aggression and eloping, along with other behaviors. The parent was unsatisfied with the LRE of the district, which included over half of the day in the general ed setting, and the remainder of the day in special ed. The parent placed the student in a private school and sought reimbursement for the tuition for denial of FAPE. After reviewing the extensive IEP from the district, the ALJ determined the IEP stated the present levels of performance, goals concerning behavior and compliance in detail, and other accommodations and services offered. The ALJ determined that the LRE was appropriate, and additional time in the general ed setting would not have been beneficial to the student or classmates. The court affirmed the ALJ s decision and denied tuition reimbursement. Article: FAPE duty requires district to create IEP for private school student Although a student with a mood disorder had never been in the public school, the District of Columbia was found to have violated IDEA by not developing an IEP for the student. Even though the district is not responsible for providing FAPE, it must be offered. Parents can request an evaluation and IEP to see what their program would provide. The court ordered the district to create an IEP for the student. Article: System for securing therapists quells parents implementation concerns A New York district had a process to ensure that services were provided to students even when their own providers were not available. This was through a voucher system that allowed parents to purchase services through private providers when the district s outside providers were not available. The parents of an autistic student claimed that the district would not be able to provide the needed services, placed the student in a private school, and requested reimbursement. The court determined that the parent s belief that the school would not provide services was not evidence enough. The parents appealed when the court ruled for the district. The court concluded that there was no evidence that the district would not be able to provide services and denied the request for tuition reimbursement. It advised the parents that the proper process would be to file if FAPE was denied.

5 Article: Disregard of math, speech needs make s private placement inappropriate After a Connecticut district failed to provide an appropriate IEP for a student with multiple disabilities, the parents placed the student in a private school and requested tuition reimbursement. The private school also failed to meet the unique needs of the student. The court denied the parents request for reimbursement and ordered the district to create a plan that would allow the student to transition back into public school. Article: Teen s physical distress calls into question reasonableness of seizure After a high school girl with ADHD hit another student in the hallway of the school, the principal and security officer physically restrained her and took her to the office. The student claimed she collapsed and became unconscious as a result. The question of the reasonableness of the actions taken by the school employees was raised. A California judge denied the school s motion for dismissal, and determined the student could continue with a Section 1983 claim. OSEP LETTERS OF CLARIFICATION Article: Maine ED must address rule requiring use of severe discrepancy formula OSEP will be working with Maine s ED to remove confusion about identifying students with an SLD. The state s regulation is interpreted to make it mandatory for a discrepancy formula to be used that is too severe, and that there are 2 other requirements. This doesn t follow IDEA. OSEP stated that the discrepancy formula may be used, but it is not mandatory. It also stated that more than one assessment measure must be taken when determining eligibility. Article: LEAs must address impact of strikes on students receipt of FAPE When there is an interruption of services to a child with an IEP, for storms or strikes, each student s IEP team must determine whether the student needs compensatory services to address any regression or loss of educational benefit. The director of OSEP also stated that districts and parents may agree in writing to make IEP changes. All changes would then be given to the IEP team. OCR Article: School fails to apply objective admissions criteria to teen with autism A student with autism was not accepted into an Arizona technical school, which was determined to be in violation of Section 504 and Title II. The school s principal had only considered the student s disability, and overlooked the fact the student had met the academic requirements that other students had to meet. The OCR found that the process of admission was different for disabled students. The OCR had the school revise its admission process and assigning liaisons to implement IEPs and be Section 504 coordinators. Article: Testimony, data, negate alleged over-identification of ELLs After a Florida district was alleged to have over-identified ELL students as having disabilities, the OCR investigated. OCR found that the district s process for identifying disabilities followed IDEA guidelines, and all students were evaluated before placement. Parents were able to participate in the process and received procedural safeguards in their native languages. Of all the students of the district identified, less than 4% were ELL students.

6 Article: Detailed plan gets everyone on board with transporting girl s seizure meds A North Carolina preschooler s IEP stated that her seizure medication should be allowed on the bus as she traveled to school. The first day of school, the bus aide wouldn t allow the transport of the medication, but the school acted quickly, and the transport of medication was allowed the second day. The district had the transfer of the medication documented as each person responsible signed that they received it. This included the bus driver or aide, and the school nurse or other school employee. The parent s complaint was not enough to convince OCR that the incident would occur again. Article: Teen s penalty for missing softball spurs district to resolve 504 claim An Oklahoma student with Type 1 diabetes missed softball practice, and was penalized by the coach, as was his policy for anyone skipping practice. The parent filed a discrimination complaint with OCR because the student s Section 504 was not followed. The district quickly resolved the case by agreeing to train staff members on Section 504 requirements so that students with disabilities have the same opportunities to participate in athletic programs. Training staff included not retaliating against anyone who complained or didn t agree with procedures or activities. The student had already graduated when the resolution was completed. Article: Sketchy link between marijuana, epilepsy stalls challenge of MD review A Kansas student with epilepsy was found to be in the possession of marijuana and other contraband. The parents claimed that their daughter s decision-making process was hindered by her disability and that she didn t understand what it meant. The district s investigation included text messages on the girl s phone and talking with teachers and parents. The IHO determined that since the girl tried to conceal the items and had planned the purchase of them, that she knew it was illegal and the case was dismissed. Article: Transportation challenges don t justify proposed residential placement A New Hampshire student with a severe behavioral disability caused safety concerns while being transported on the bus. The district thought it would be best for the student to attend a residential facility. The IHO found that the student would be better served if the student could attend a day-school program and still be in contact with family members and participate in community activities. The IHO reminded the district that IDEA requires the least restrictive environment, which was not residential placement in this case. The IHO suggested a transportation evaluation be done and alternative transportation options be developed to meet the child s needs.

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