Common Legal Mistakes Districts Make Trish Andrews Andrews & Price 412-243-9700.

Common Legal Mistakes Districts Make

Trish Andrews

Andrews & Price

412-243-9700

Procedural/Substantive violations

Rowley v. Hendrick Hudson S.D.U.S. Supreme court

Procedures just as important as substance

Procedural violations can result in a denial of FAPE

Procedural/substantive violations

IDEA 2004Hearing Officers must find that the child was denied FAPE

Did not make educational progress

Decision cannot be made on procedural violations alone

Does Not mean that procedures are no longer important

Procedures - Timelines

Parent does not return signed Permission to Evaluate

Don’t just ignore

Prove that we made an effort to get back

Do we believe child needs evaluated?May need to go to due process

Otherwise, may have child find violation

Procedures - Timelines

Parent will not agree on an IEP dateIEP must be completed within 30 calendar days of ER or at least annually

Don’t schedule date for IEP on 30th day

Hold meeting without parent to maintain timeline

Provide with copy of IEP

Offer to hold follow up meeting at a later date

Procedure - Timelines

Parent does not show up at IEPIf you have time, reschedule

If not, call parents

Hold meeting without themJust have to show we made attempts to have parents present

Send IEP

Offer to hold follow up meeting at a later date

Procedures - Timelines

Parents attend IEP meeting, but refuse to agree to anything

Don’t let parent scuttle timelines

Take control of meeting

Procedures - Timelines

Parents are equal participants at IEP meetings

But are not the supermajority

Should be open discussion regarding child’s program

Parents should make joint and informed decisions regarding child’s program

Procedures - Timelines

Team should try to work toward consensus, but

It is the district’s ultimate responsibility to ensure that the IEP includes services child needs to receive FAPE

If Team cannot reach consensus with parent

Make offer of FAPEIssue NOREP

Parents have right to institute dispute resolution

Procedure - TImelines

What if school team members do not agree?

District’s responsibility to ensure FAPE

But must be able to defend program at due process

Need witnesses

If members of Team disagree, may be hard to prove that District’s offer is FAPE

Procedures - Timelines

“This IEP meeting should only take 30 minutes”

Make sure to schedule sufficient time for IEP meetings

Don’t have to let the meeting go on for hours, but

Take into consideration that parent may have an issue to discuss

Procedures

This leads to next issue:May need to allow more than 1 period for an IEP Team meeting

Members cannot simply leave to go back to class

Procedures – IEP Members

Required members remain:Parent

LEA

Special education teacher

Regular Education Teacher

General Rule:Must be present at ENTIRE IEP meeting!

Procedures – IEP Members

IDEA 2004Does allow some members to be excused

Requires written parental consent

Proposed Regulations:LEA is not permitted to leave

Procedures – IEP Members

When can a member be excusedthe team member’s attendance is not necessary because the member’s area of the curriculum or related services is not being modified or discussed

when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services if the member submits, in writing to the parent and Team input into the development of the IEP prior to the meeting

Predetermined Placements

District cannot finalize placement decisions before the IEP meeting

Placement decision should be made based upon the goals and SDI in child’s IEP

Therefore, develop the IEP, then ask:Where can this IEP be implemented

Predetermined Placements

Placement decisions are particularly important in light of Gaskins

Should be a thorough discussion and decision at meeting

Placement Decisions

Placement based upon child’s needsCannot be based upon availability of service

Cannot be based upon cost

Refusing a parent request

NOREPs are issued when district makes a recommendation

Districts do a good job of issuing for changes

Also issued when district refuses a parental request

Many districts overlook issuing for refusal

Inadequate IEPs

Remember what IEP must do:Must be designed to provide child with FAPE

What is FAPEAn educational program that allows a child to receive meaningful educational benefit

What is meaningful educational benefit?

PROGRESS!

Inadequate IEPS

PELs must show progressSet baselines

When developing next year’s IEP, review baseline established in PELs

Document in next year’s IEP how the child has improved from baseline

Discuss skills that the child has learnedCompare those skills to baseline

Showing progress

Mistake: Comparing apples to oranges

Again: progress is the cornerstone of FAPE

Helpful to show more than just subjective opinion of progress

Showing progress

One way of showing progress is through standardized assessments

Often an assessment is given to determine baseline

This is good!

But, then either no assessment or a different assessment is used at the end of the year

Nothing to compare

Use consistent assessments to show progress

Failing to hold IEP meeting

What if there is no progress?

IDEA requires IEP meetings to be held at least annually

More frequently if the child is not making appropriate progress

Highlights importance of progress monitoring

Failing to Hold IEP Meeting

If no or little progress is shownSchedule an IEP meeting during year

Review and revise IEP

Must address areas in which child is failing to progress

Methodology

Remember that it is the District’s preference

Parents may be able to chose methodology if child fails to appropriately progress

Carefully monitor progressBe aware of child that stays at 3rd grade reading level for 3 years

Changing Placement without changing IEP

LRE: child is expected to be educated with nondisabled peers

Cannot change placement if child is making progress

If child is not making progressMust be able to show that the district has made every effort to educate child in LRE

Several IEP meetings

Numerous revisions to IEP

Request for IEE

Mistake: Failure to request due process if parents request IEE

Parents have right to ask for IEE at public expense

If that occurs, district has 2 choices:Agree to pay

Request due process– Provide our evaluation is appropriate

Restraints

District may use passive restraint if:Child is in danger of harming himself or others

Use of restraints shall cause a meeting of the IEP Team

Review BIP to prevent behavior from occurring.

Manifestation Determinations

Mistake: predetermining outcomeManifestation determinations involve parent and LEA and relevant members of IEP Team

All parties are to have input

Decisions to be made after input is provided