Highlights of Special Education Law Colchester Board of Education March 2015 Alyce L. Alfano, Esq. www.shipmangoodwin.com Shipman & Goodwin LLP 2014. All rights reserved. HARTFORD STAMFORD WASHINGTON, DC GREENWICH LAKEVILLE
IDEA The Individuals with Disabilities Education Act (IDEA) governs special education services To be eligible, students must fit into one of 13 categories of disabilities Under the IDEA, identified special education students must be provided with a free appropriate public education (FAPE) to meet their special education needs in the least restrictive environment (LRE)
Individualized Education Plan (IEP) The IEP is the hallmark of IDEA The written vehicle through which special education is provided Special education: specially designed instruction to meet the unique needs of a child with a disability Must be tailored to the specific, individual needs of a child IEP must be designed to confer meaningful educational benefit
Procedural Safeguards Special education case law and the statutes and regulations themselves emphasize that following procedure is a critical piece of providing parents and students with their legal rights The law places this emphasis on procedure to ensure that parents have a right to be heard and exercise their rights
Procedural Safeguards cont. However, not every procedural violation rises to the level of constituting a denial of due process The violation must cause a deprivation of educational benefit All parents of special education Students are given a copy of extensive, clear Procedural Safeguards at least once a year. (CGS Sec. 10-76d).
Due Process Standards: Rowley case IDEA requires states receiving federal special education funding to provide disabled children with a FAPE FAPE is defined as "personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" that is "formulated in accordance with the requirements of the Act." Board of Educ. v. Rowley, 458 U.S. 176, 203-204 (1982).
Rowley, cont d Services must be reasonably calculated to enable the child to receive educational benefits Educational benefit does not mean potential maximizing Districts must provide a basic floor of opportunity likely to produce progress, not regression Districts are not required to provide the Cadillac
FAPE Denial? Legal Analysis Two-prong inquiry: Procedural knew and followed procedures? Will result in FAPE denial only if: Impeded a student s right to FAPE Caused a deprivation of educational benefits Significantly impeded parents rights to participate in education decision-making Substantive conferred educational benefit?
Placement and Planning Team (PPT) IEP development is a team sport IEP must be developed annually at a properly constituted PPT meeting PPT charged with determining eligibility for special education services and developing an IEP that ensures a child with a disability receives a free and appropriate education (FAPE) in the least restrictive environment (LRE)
PPT Membership Parent of child with disability Child with a disability, if appropriate Regular Education Teacher of the child (if participating, or may participate) Special Education Teacher of the child Administrator or representative Relevant service providers (qualified to interpret assessment data) Representative from private or out-of-district facility Anyone invited by parent/district who have knowledge or special expertise regarding the child Transition Agency, if parent signs consent
Notice IDEA requires that parents receive written notice of a PPT meeting Notice must be received at least 5 days prior to the meeting (unless 5 days waived by parent and must include: Date, time, location, purpose(s) of meeting, invitees, and a copy of procedural safeguards Notice must be in the native language of parents UNLESS not feasible to do so Best Practice Tip: Request that parents review demographic information at least annually
School Based PPT s Responsibilities Provide prior written notice to parents before it: Initiates or changes (or refuses to change) the identification, evaluation, educational placement or provision of FAPE Make program recommendations, including levels of inclusion Develop an IEP of specialized instruction and related services, as appropriate, so that each child with a disability has a FAPE in the LRE
School Based PPT s Responsibilities Provide a copy of the IEP within 5 days of a PPT meeting Implementation must be 10 days after receipt of IEP, or as agreed-to at the PPT Meeting minutes are not required Parents have the right to ask for statements to be attached to the minutes, but not to insist that minutes be written a particular way
Parent Responsibilities/Rights Participate in the development of the IEP Failure to permit parent participation may result in a finding of denial of FAPE Parents who disagree with an IEP may file for a due process hearing (or mediate or file a State Complaint)
Writing an IEP Include all necessary information to provide the student with an appropriate program IEPs should be written such that a hearing officer, with no knowledge of the student, should be able to understand the student s disability and the student s program Best Practice Tip: Begin at p. 1 of the IEP and complete remaining pages sequentially
Writing an IEP, cont d Develop a draft IEP prior to the PPT meeting Do not pre-determine! there should be no discussion of placement until the entire IEP has been developed Team members must come to the table with an open mind, but they need not come with a blank mind. Fitzgerald v. Fairfax Cty. Sch. Bd., 556 F. Supp 2d. 543 (E.D.Va. 2008). PPT must be able to defend its recommendations Always support recommendations with clear data, evaluations, or other professional approval
Writing an IEP, cont d PPT members should review all relevant evaluations, test scores, grades, and reports prior to developing an IEP Always consider information provided by the parent School staff are entitled to a reasonable period of time to review an evaluation outside of the PPT meeting Best Practice Tip: Contact the parents prior to the meeting to determine whether they have specific concerns or independent evaluations or will bring anyone to the PPT
Independent Educational Evaluations Under the law, parents have the right to have independent evaluations of their children performed at any time If the parent obtains an independent evaluation and brings it to the district for consideration, the evaluation must be considered by the district in developing the Student s IEP (34 CFR 300.502(c)(1))
Independent Educational Evaluations cont. However, the district is not under an obligation to necessarily incorporate the recommendations of the independent evaluator Similarly, if the parents have requested and obtained an independent evaluation at district expense (34 CFR 300.502(a)(2)), the PPT team must consider the findings of the evaluation, but is not under a legal obligation to incorporate or adopt the findings
Drafting Goals and Objectives IEPs are effective for one calendar year Goals and objectives should be written for mastery during this time frame Do not write services to extend only until next PPT meeting or until the end of the school year May end up with an expired IEP as meetings are often postponed
Annual Reviews IEPs must be reviewed and updated at least annually Each IEP has a specific Next Annual Review Date The CT State Department of Education is clear that districts must conduct Annual Reviews on a timely basis or face penalties for non-compliance
Annual Reviews cont. Thus, the situation regularly arises of how to timely schedule the Annual Review PPT when all parties are unavailable at a mutually convenient time, or, if an independent evaluation is not yet complete which makes sense to include in the annual planning process What many districts and parents thus agree to do is to convene a brief PPT by the Annual Review date, and agree to formally continue the goals and objectives
Annual Reviews cont. The goals and objectives are then continued until all parties and information are available to convene a substantive PPT Both federal and CT law are clear that parents be afforded the opportunity to meaningfully participate in the PPT process (RCSA 10-76d-12; CFR Section 300.322)
PPT Participation A PPT meeting may be conducted without a parent in attendance if the Board is unable to secure parental attendance and documents its attempts to arrange parental participation The requirement of parental participation must also be balanced against the annual review requirement
Implementation of the IEP It is important to remember that even if parents do not agree with an IEP, unless the parent files for due process, that IEP can be implemented after the prior written notice period expires In other words, parents do not have to affirmatively agree or sign off on an IEP in order for it to be implemented
Goals and Objectives Must be connected to areas of weakness Must be measurable Must be specific to the needs of the individual child, not to the category of disability Must include clear data collection methods Must be specific broad or vague goals/objectives may be a denial of FAPE
Measureable Goals and Objectives Should allow for the definition of a baseline Explain from where you are starting Identify how the team (including parents) will know that progress is being made Identify objective data that will be collected
Goals Goals should describe what this particular child with this particular disability can reasonably be expected to accomplish within a 12-month period At least one goal should be written for each area of need Must correspond to the student s present levels of academic achievement and functional performance Must have a corresponding item of instruction or services identified A student need not have goals/objectives that relate to areas of the general education curriculum in which the student s disability does not affect his or her educational performance
Objectives Objectives should be sub-skills of goals and should NOT restate the goal Represent measurable steps between the present level of educational performance and the annual goals Written in a sequential order (scaffolding) representing progression through the skills needed to accomplish the goals Permit monitoring of a student s progress to accomplishment of goals
Progress on Goals and Objectives Must, at least quarterly, document progress on goals and objectives If possible, annotate goals to identify level of progress throughout the year (i.e. 50%, 60%, etc.)
Review of Finalized IEPs An IEP is an official record of what occurred at a PPT meeting Request for changes to an IEP may be treated as a request to amend a student record Parent letters relating to a PPT meeting should be attached to the IEP without changing the substance Best Practice Tip: Only make changes for clear error, not a different opinion
IEP Amendments Changes to an IEP should generally occur during a PPT meeting An IEP may be amended outside the PPT meeting IF: Changes are not part of an annual review Parent consents to the changes in writing District administrator consents to the changes in writing
IEP Amendments, cont d If an amendment is made outside the PPT meeting, the following must be occur: Prior written notice Completion of an amendment form Revision of pages 1 and 2 of the IEP Revision of page(s) of the IEP relevant to the change(s) made
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