Legal Issues in Special Education Susan Larson Etscheidt, Ph.D. University of Northern Iowa This session will feature several legal issues of interest to educational leaders, including student discipline and behavior intervention plans, IEP development, Secondary issues & transition services, progress monitoring, assistive technology, paraprofessional supports, Section 504, and dispute resolution. Several recent administrative and judicial decisions will be highlighted. The session will include small group activities as well as discussion forums. 1
Legal Issues for Educational Leaders Susan Etscheidt, Ph.D. University of Northern Iowa Topic 1: IEP Compliance A Pre-Test 1. May changes to an IEP be made without holding an IEP meeting? Yes No 2. May an IEP team meeting be held without the parent in attendance? Yes No 3. Must the notice of an IEP meeting inform the parents of the purpose Yes No of the meeting and who will be in attendance? 4. Is it true that regular education teachers must be told of their Yes No responsibilities in implementing an IEP, but may not access a child s IEP? 5. Is a parent entitled to only one independent educational evaluation Yes No each time the agency conducts an evaluation? 6. May any member of the local education agency (school district) serve Yes No as the LEA representative at an IEP team meeting? 7. May a member of the IEP team be excused from an IEP meeting Yes No if the parent, special education teacher, and LEA representative agree in writing that the excusal is permitted. 8. Is it permissible for the education agency to offer parents a finalized IEP Yes No before the IEP meeting begins? 9. If a parent wishes to revoke consent for special education services, may Yes No the LEA refuse to acquiesce and continue to provide services? 10. Do related services include providing parents counseling and Yes No training? 11. May a school district make the provision of special education or related Yes No services contingent on the administration of medication, like Ritalin? 12. May a child s potential for regression be used as the sole indicator Yes No of the need for extended school year services? 13. Must school districts provide supplementary aids and services to provide Yes No extracurricular services and activities to students with disabilities? 14. Must the regular education teacher participate in the development of Yes No positive behavioral interventions? Etscheidt, S. (2007). The excusal provision of the IDEA 2004: Streamlining procedural compliance or prejudicing rights of students with disabilities? Preventing School Failure, 51(4), 13-18. 2
Topic 2: Student Discipline & Behavior Intervention Plans D I S C I P L I N E Etscheidt, S. (2002). The Discipline Provisions of the IDEA: Misguided Policy or Tacit Reform Initiatives? Behavioral Disorders, 27(4), 408-422. Etscheidt, S. (2006). Seeking an interim alternative education placement for dangerous or disruptive students with disabilities: Four burdens for school districts to meet. American Secondary Education, 34(2), 67-84. 3
Topic 3: Secondary Issues & Transition Services 1. If the student does not attend the transition IEP meeting, the public agency T F must take other steps to ensure that the child s preferences and interests are considered. 2. If an agency invited to send a representative to a transition planning meeting T F does not send someone, the public agency must take other steps to obtain participation of the other agency in the planning of any transition services. 3. If a participating agency (other than the local education agency) fails to T F provide the transition services identified on a student s IEP, the local education agency must reconvene an IEP meeting to identify alternative strategies to meet the transition objectives for the child. 4. Prior to inviting agencies who may responsible for providing or paying for T F transition services, the local education agency must obtain parental consent. 5. The current federal law and regulations no longer require IEP teams to plan T F courses of study, but rather only transition services for students. 6. Transition planning may not occur before a student has reached the age of T F 16. 7. An evaluation must be conducted prior to termination of special education T F services for a student who has graduated with a high school diploma. 8. Parental revocation of consent for services under 300.300(b)(4) T F could affect social security income (SSI) or accommodations in college? http://www.ed.gov/about/offices/list/ocr/ transitionguide.html. 9. If a student s transition services to be provided by another agency require T F specific evaluation, the local education is required to conduct those evaluations and to include the results in the Summary of Performance. 10. A student convicted as an adult and incarcerated in an adult prison must T F continue to receive a free, appropriate public education. Etscheidt, S. (2006). Issues in transition planning: Legal decisions. Career Development for Exceptional Individuals, 29(1), 28-47. Questions for Discussion 1. What aspects of the high school environment might make inclusion more challenging than in elementary school? 2. Cheryl Jorgensen, the IOD professor who worked with Pembroke Academy, said all students, with the right support, and the right technology, and the right teaching, can learn the general education curriculum. What do you think about this statement? 3. One of Alana s teachers, Carol Ward, said How am I going to reach the valedictorian and reach Alana at the same time? Why do you think some teachers struggle with inclusion? 4. Why do you think many high schools maintain separate classrooms for some students with disabilities? What impact do you think that practice has on students with and without disabilities? 5. Do you think Special Olympics reinforces or reduces stereotypes and stigma related to individuals with disabilities? 4
Topic 4: Progress Monitoring Progress Monitoring PreTest Susan Larson Etscheidt, Ph.D. University of Northern Iowa 1. Must IEP teams develop objective means of measuring progress YES NO DEPENDS toward the child s IEP goals? 2. Does the IDEA require quarterly report cards of a child s YES NO DEPENDS progress towards annual goals? 3. Must a child removed from school for disciplinary reasons YES NO DEPENDS continue to receive educational services to enable the child to progress towards meeting the IEP goals? 4. Is documentation of a child s failure to progress during YES NO DEPENDS appropriate instruction in general education required before a child is diagnosed as learning disabled? 5. May progress monitoring responsibilities be delegated to YES NO DEPENDS a paraprofessional? 6. When a child with an IEP graduates, must a school district YES NO DEPENDS provide a summary of the child s academic achievement and functional performance? 7. If a parent believes the child is not progressing due to the YES NO DEPENDS school district s failure to provide a highly qualified teacher, may s/he request a due process hearing? 8. Must a child s annual goals specify the assessment tools that YES NO DEPENDS will be used to determine outcomes and progress? 9. Must the IEP include appropriate and measureable YES NO DEPENDS postsecondary goals based on transition assessments? 10. Does the U.S. Department of Education consider progress YES NO DEPENDS monitoring one of the most important aspects of good teaching? 5
Data Evident Multiple Measures Direct & Indirect Measures Authentic Measures Specify Who, Where & When The IEP team must select an appropriate progress monitoring approach for each S goal/objective. Simple checkmarks or arrows as progress indicators = insufficient. If used, they must be based on data collected and accessible to the IEP team. Those data should include direct measures, indirect measures, and authentic measures of progress Direct Measures Behavior Observation Curriculum-based Assessment Indirect Measures Rubrics Goal attainment scaling Student self-monitoring. Conferences Student Teacher Parent Portfolios Assistive Technology Videotaping Individuals responsible must be identified w/ location, dates, and time of data collection. PM duties distributed to IEP team members responsible for implementing IEP goals. Determine frequency of data collection so IEP teams will have sufficient data for evaluating the student s progress. Etscheidt, S. (2006). Progress monitoring: Legal issues and recommendations for IEP teams. Teaching Exceptional Children, 38(3), 56-60. Topic 5: Paraprofessional Support Establishing the Need Meaningful Educational Benefit Non- Academic Benefit 1:1 vs. Classroom Selection & Qualifications District Discretion Qualifications on IEP Responsibilities Student Safety Health Services Training & Supervision Training Supervision Etscheidt, S. (2005). Paraprofessional services for students with disabilities: A legal analysis of issues. Research and practice for Persons with Severe Disabilities, 30(2), 60-80. 6
Topic 6: Assistive Technology Seven Spots for Assistive Technology in the IEP Topic 7: Section 504 Section 504 Non-discrimination Statute No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives or benefits from Federal financial assistance. ADA Amendments Act of 2008 OCR enforces Section 504 of the Rehabilitation Act of 1973 (Section 504) which protects individuals with disabilities in programs & activities receiving federal financial assistance Title II of the Americans with Disabilities Act of 1990 (ADA) which prohibits discrimination against individuals w/disabilities in state & local programs regardless of federal funding AA 2008 Passed to supersede Supreme Court decisions that had too narrowly interpreted ADA s definition of disability. AA amends the ADA and Section 504 to broaden potential class of persons w/ disabilities protected from discrimination AND retaliation & harassment Definition: a person who (1) has a physical or mental impairment which substantially limits one or more major life activities (2) has a record of such an impairment or (3) is regarded as having such an impairment. Substantial Limitation under New ADA Amendments Act of 2008 The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. (42 USC 12102(4)(E)) Impairment that Substantially Limits Need not prevent or severely or significantly restrict a major life activity to be considered substantially limiting. Substantially limits interpreted without regard to ameliorative effects of mitigating measures. The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. (42 USC 12102(4)(E)). Impairment that is episodic or in remission is disability if when in active phase would substantially limit major life activity [bipolar, seasonal allergies, migraines] Evaluation & Eligibility A recipient that operates a public elementary or secondary education program or activity shall conduct an evaluation of any person who, because of handicap, needs or is believed to need special education or related services before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement (34 CFR 104.35(a)). 7
Parental Consent Even though 34 CFR 104.36 does not contain a requirement for obtaining parental consent for evaluation, the OCR has interpreted Section 504 to require districts to obtain parental consent for initial evaluation Mitigating measures SDs may no longer consider ameliorative effects of mitigating measures when making disability determination, but may be relevant in evaluating NEED for special education or related services Two prongs the same as for IDEA :SD must evaluate S who because of disability needs or is believed to need special education or related services [34 C.F.R. 104.35] Evaluation & Eligibility (1) Tests are valid (2) Tests assess specific areas of educational need (not single quotient) (3) Tests accurately reflect the student's aptitude or achievement level Information must come from a variety of sources, including aptitude/achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior Information from all sources is documented and carefully considered Placement decision must be made by a group of persons Placement decision is made in (LRE). Periodic reevaluation must be conducted Notice Districts must provide notice to parents PRIOR to evaluations and for decisions NOT to evaluate. The content is not defined for 504, but should explain the action the district proposes or declines to take and the reasons Notice must be detailed enough to allow parents to evaluate whether they wish to consent, refuse, or request due process Notice must include procedural rights (notice, examination of records, hearings & review) Modifications Even if S does not need special education or related services, SD must consider if S is entitled to reasonable modifications of policies, practices or procedures. CASE Guidelines when a student is referred for special education evaluation, but is determined not eligible for services under IDEA or the school decides not to do an evaluation for IDEA when suspension or expulsion is considered for any student when retention is being considered for any student when a student show s a pattern of not benefiting from the instruction provided when a student returns to school after a serious illness or injury when a student exhibits a chronic health condition when a student is identified as at risk or show the potential of dropping out of school when a student possibly is involved in substance abuse whenever a disability of any kind is suspected Common Mistakes 8