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Page 1: Special Education Patricia R. Andrews Andrews & Price.

Special Education

Patricia R. Andrews

Andrews & Price

Page 2: Special Education Patricia R. Andrews Andrews & Price.

History

1972-PARC Consent Decree Challenged the education of mentally retarded students in PA Agreement to provide educational services to

all children Established 1st due process hearings to

challenge program Hearings very simply Districts usually prevailed

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History

1975 – Public Law 94-142 Modeled after the PA scheme No major changes for PA Hearings more complex

New issues Advocates Some lawyer involvement

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History

1986 – Smith v. Robinson U.S. Supreme Court Case Held no attorney’s fees available for prevailing

parties under P.L. 94-142

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History

1988 – Protection for All Handicapped Children Act 94-142 amended to provide for attorney’s fees

for prevailing party Only for parents

No meaningful substantive changes Parent lawyers now come on scene

More complex and longer hearings

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Major cases

Amy Rowley v. Hendrick Hudson S.D. Deaf student requesting an interpreter as part of

educational program Holding:

Substantive: children are only entitled to an appropriate, not best, program

Procedures: cannot have substantively appropriate program if procedures not followed

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Major cases

Oberti Down Syndrome child requesting inclusion in

the regular education environment IDEA adopts the Court’s decision Holding: Children are entitled to be educated

in the least restrictive environment Children educated with nondisabled peers to

maximum extent appropriate Must provide supplementary aides and services to

allow inclusion to be satisfactorily achieved

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Major Cases

Gaskins Consent Decree In the process of being finalized Emphasizes requirement of IEP Team to

appropriately consider LRE before making placement determinations

Monitored by PDE

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Major cases

W.B. v. Matula Third Circuit Holding: school districts can be liable for

monetary damages as well as compensatory damages

Every other circuit has held the opposite

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History

1997-IDEA 1st meaningful substantive changes in 22 years Reauthorization finalized in 2004

Effective July 1, 2005

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IDEA

Incorporates the holdings of PARC, Rowley, Oberti School must identify all children with disabilities and

provide FAPE FAPE is an individualized education program designed to

meet the needs of the child that is reasonably calculated to provide meaningful educational benefit

Procedures must be followed Education must be in the least restrictive environment Parents have due process rights

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IEP Team

The IEP Team is the decision maker under IDEA Responsible for developing, reviewing and

revising an IEP There are no individual decisions

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Required Members of the IEP Team

IEP Team includes Parents At least 1 regular education teacher of the child At least 1 special education teacher of the child LEA

Qualified to provide or supervise the provision of SDI; is knowledgeable about the general curriculum; is knowledgeable about the availability of resources of the public agency

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IEP TEAM ATTENDANCE

An IEP team member shall not be required to attend all or part of the IEP meeting if the parent in writing and the LEA agree that the team member’s attendance is not necessary because the member’s area of the curriculum or related services is not being modified or discussed at the meeting DOCUMENT!

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IEP TEAM ATTENDANCE

An IEP team member may be excused from attending all or part of the IEP meeting when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services if the parent in writing and the LEA consent to the excusal and the member submits, in writing to the parent and Team input into the development of the IEP prior to the meeting

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IEP TEAM ATTENDANCE

Is this really helpful? This provision requires written documentation

– do not forget this step – cannot just leave! Does this take more time than just attending the

meeting itself? RECOMMENDATION: As a general rule, the

required members of the Team should be present throughout the meeting – this provision should be the exception to the rule.

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AMENDING THE IEP

Changes after the annual IEP meeting: Parent and LEA may agree not to convene an

IEP meeting Instead may develop a written document to

amend or modify the current IEP Can still hold a full team meeting Parent shall be provided with the revised

document

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AMENDING THE IEP

RECOMMENDATION: Too many pitfalls:

Must document the agreement – takes time Are all teachers notified of changes? Are parents truly aware that a change is being made

to the IEP? GENERAL RULE: Hold the IEP Team

meeting! This should be the exception to the rule.

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AMENDING THE IEP

Changes can be made by amending the IEP rather than by redrafting the entire document. Document this clearly to avoid confusion Provide parent with a copy of the changes

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IMPLEMENTATION

Once IEP is agreed to, must be appropriately implemented IEP is a legally binding agreement

IEP Team agreed that the items in the IEP are the required special education services to provide child with FAPE

Entire IEP must be followed Cannot chose “portions” of IEP to implement

As the LEA – must monitor implementation

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“Why should I care?”

Extreme-Doe v. Withers-Teacher held personally liable for money damage for failing to implement the IEP. (School insurance did not cover him). This teacher actively refused to implement the specially

designed instruction even after administration cited him.

Court reasoned that this was sufficiently egregious conduct to defeat claims of immunity.

Jury returned verdict against high school teacher for $5,000.00 compensatory and $10,000.00 punitive.

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Why Should I Care?

Discipline - 24 P.S. § 11-1122 Incompetency Unsatisfactory Rating Persistent negligence in the performance of

duties Willful neglect of duties Failure to follow District Policy or

Administrative directives

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Understanding LRE

“Children placed in special education are general education children first” President’s Commission on Excellence in

Special Education

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Understanding Least Restrictive Environment

Inclusion is not a legal term-LRE is the law.

Legal mandate that disabled children should be educated, to the maximum extent appropriate, with their nondisabled peers.

Presumption is that children with disabilities are to be educated in regular classes.

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LRE

Shift in emphasis!

Prior to 1997 IEP explained the extent a child would be able to participate in reg. Ed. now an IEP must explain the extent the child will not be placed in regular ed. and why.

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LRE

Determination of educational placement made by the IEP Team – including the parents! At least annually

Team must assure that child is removed from regular education environment only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aides and services cannot be achieved satisfactorily Is the child making progress?

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Prior Written Notice

A NOREP must be issued to the parents if The District proposes to initiate or change the

educational placement of a child with a disability

Parents must agree, on the NOREP before a change of placement can occur

Verbal consent is not sufficient CANNOT CHANGE UNILATERALLY!

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Why Should I Care?

Little Mistakes Lead to Big Problems Due Process

Time Consuming Adversarial

Damages Compensatory education Tuition reimbursement Money

Discipline In the job and personally

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Why Should I Care?

Avoid problems by following IDEA’s procedures Remember: IEP Team makes all final

decisions Remember: Parents part of Team Remember: Obtain parental consent through a

NOREP for every change – no matter how small

Remember: IEP must be fully implemented


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