LEAs Must Consider Independent Evaluative Information Brought in by the Parents

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. According to Weatherly, "The IDEA regulations require that school staff consider the results of indepenent educational evaluations obtained by parents. Thus, if the parents bring an outside or private evaluation to the meeting, appropriate 'consideration' must be given to it. Saying something like, 'we aren't going to even condider this report' is inappropriate and can lead to an argument that a procedural violation has occurred. Of course, consideration of an outside evaluation does not require that the evaluator's receommendations be incorporated into the IEP or programming for a child. However, school staff should be prepared to show that 'consideration' was given to the report and its results and recommendations"

A Visit to Walhalla Middle School

Yesterday I was able to participate in an IEP meeting at Walhalla Middle School. I arrived a few minutes early and was directed to the location of the meeting. When I entered the conference room, a projector was set up and the IEP was cued and ready for presentation on a large screen at the front of the room. Just moments later, IEP team members began to arrive and within just a few minutes the meeting was underway. The case manager opened the meeting, explained the purpose, and made introductions. All members on the invitation letter were accounted for and each participant shared in the discussion. The student and parent were both encouraged to participate several times throughout the meeting and were asked how they felt about the IEP being proposed. The team participants were courteous and professional while presenting present levels of academic and functional performance, goals, and services. Questions were answered thoroughly and with respect. I am certain the parent left the meeting confident that this team genuinely cared about her child. It was obvious the case manager and put a lot of thought into the development of this IEP and included prior input from relevant team members. Great meeting!

LEAs Must Address Transition Activities and Provide the Summary of Performance

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. According to Weatherly,

"Pursuant to IDEA 2004, beginning not later than the first IEP to be in effect when a student is sixteen years old, and updated annually thereafter, an IEP must contain 'appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment and, where appropriate, independent living skills' and the transition services (including courses of study) needed by the child to reach those goals. In addition, some states are choosing to add to this requirement by making age fourteen the mandatory age for transition services to be included in an IEP (in SC the age is 13). It is expected that there will be increasing challenges made to IEPs based upon an alleged failure to appropriately address the issue of transition, which is known to be a weakness in the process of educating children with disabilities. It is vital that school staff be trained to understand exactly what is required to be included in the transition planning process, including the requirement to provide a summary of performance once a child's eligibility for FAPE has expired via graduation with a regular high school diploma or aging out of eligibility."

Services Must Be Provided with Clarity

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. According to Weatherly, "The amount of services offered by the school agency must be set forth in the IEP in a fashion that is specific enough for parents to have a clear understanding of the level of commitment of services on the part of the school agency. Among other things, clarity will help to avoid misunderstandings that often lead to litigation. For example, to indicate during the meeting that a range of services will be provided, such as '3 to 5 periods per day of special education services' would not be sufficient to relate specifically what the student will be receiving. Similarly, without language defining the criteria for determining the need for a particular service, statements like 'she will receive occupational therapy on an 'as needed basis' may very likely lead to misunderstanding on the part of the parents and the school agency personnel responsible for providing the service. Finally, offering three possible programs for a parent to consider is not sufficient to constitute a clear commitment of services on the part of the school agency."

LEAs Must Allow for Participation of Persons Brought by Parents to the IEP Meeting

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. According to Weatherly,

"Parents are entitled to bring to an IEP meeting 'other individuals who have knowledge or special expertise regarding the child.' Generally, unless confidentiality would be violated, school staff should allow such persons to attend under the IDEA. However, it should be remembered that the IEP process is not a 'voting' process and that 'stacking the deck' by having the most people there will not lead to 'winning the IEP.' Rather, it is a process by which the members of the IEP Team, including the parent, attempt to reach consensus as to the components of a student's IEP and program. Because regulatory guidance indicates that the parents will decide whether their invitees have 'knowledge or expertise regarding the student,' it is generally settled that parents may bring people such as attorneys, next door neighbors, grandparents and other relatives, Sunday school teachers, and private practitioners. School personnel should be trained to adequately afford such persons the opportunity to appropriately participate in the IEP meeting. Of course, the school agency should attempt to ascertain whether the parent intends to bring anyone to the meeting so that appropriate arrangements can be made for the meeting. Though parents are not required to provide this information to the school agency, there is nothing that would prevent a school agemcy from adjourning the meeting if necessary, especially if the parent brings an attorney without prior notice to the school agency."

Verify student's role in wrongdoing before carrying out MDR

An interesting article from Special Ed Connections....

"A student with LDs is involved in a sale of marijuana at school. The district holds a school board meeting, where it decides to expel the student. It then conducts a manifestation determination review.
The parents in Farrin v. Maine Sch. Administrative Dist. No. 59, 35 IDELR 189 (D. Me. 2001), argued the district should have conducted the MDR first. The court disagreed, noting there is nothing in the IDEA that spells out in what order a disciplinary hearing and MDR must take place.
"It makes sense to hear the student's side of the story; determine, for sure, did he commit this offense; then determine, for sure, the proposed penalty," said Jim Walsh, a school attorney at Walsh, Anderson, Brown, Aldridge & Gallegos, P.C., in Austin, Texas. "Otherwise, you're doing a manifestation determination before you've even officially . . . determined exactly what the student did."
This is just one source of contention that commonly arises between parents and school personnel during MDRs, Walsh said. Other areas where potential missteps can occur include staving off disagreements about committee composition, addressing consensus problems, and administering long-term suspensions.
Walsh spoke about and offered guidance on each of these issues during LRP's audio conference Getting Manifestation Determinations Right: Practical Strategies for Compliance."

Disciplining Students with Disabilities: Essential Point #9

In the July-August 2009 issue of In Case (Council of Administrators in Special Education), Julie Weatherly (attorney with the Weatherly Law Firm) begins a series of articles addressing the discipline of students with disabilities. Here is the ninth essential point...
"As is the case with the use of in-school suspension, a disciplinary removal of a student with a disability from the school bus could constitute a 'change of placement.' It is important to remember that 'placement' generally includes those services set forth in a student's IEP. Thus, it will be important to determine whether transportation is included as a related service on a student's IEP in order to determine whether a 'change of placement' has occurred as a result of a bus suspension.
Again, in the commentary to the 2006 IDEA regulation, the U.S. Department of Education commented that '[w]hether a bus suspension would count as a day of suspension would depend on whether the bus tranportation is a part of the child's IEP. If the bus transportation were a part of the chld's IEP, a bus suspension would be treated as a suspension...unless the public agency provides the bus service in some other way.' The Department of Education went on to note that where bus transportation is not a part of the child's IEP, it is not a suspenstion and that '[i]n those cases, the child and the child's parent have the same obligations to get the child to and from school as a nondisbled child who has been suspended from the bus. However, public agencies should consider whether behavior on the bus is similar to behavior in the classroom that is addressed in an IEP and whether the child's behavior on the bus should be addressed in the IEP or a behavioral intervention plan for the child (71 Federal Regulations 46,715).' Thus, whether bus suspensions may amount to a 'change in placement' will depend upon whether the student's IEP lists transportation as a related service because the student's needs are such that specially designed transportation is required. If transportation is a related service, bus suspension will count toward the 'change of placement' analysis. If it is not a related service, it will not count."

Discipline of Students with Disabilitites: Essential Point #8

In the July-August 2009 issue of In Case (Council of Administrators in Special Education), Julie Weatherly (attorney with the Weatherly Law Firm) begins a series of articles addressing the discipline of students with disabilities. Here is the eighth essential point...
"Similar to the removals referenced in Essential Point #7 are those that are called "in-school suspension" or ISS. It is important to remember that the use of ISS to discipline a student with a disability could also constitute a 'change of placement.' In the commentary to the 2006 regulations, the U.S. Department of Education reiterated its 'long term policy' that an in-school suspension would not be considered a part of the days of suspension toward a change of placement 'as long as the child is afforded the opportuntiy to continue to approopriately participate in the general curriculum, continue to receive the services specified on the child's IEP, and continue to participate with nondisabled children to the extent they would have in their current placement (71 Federal Regulation, 46,715).' Therefore, based upon this guidance, whether a change of placement has occurred via the use of in-school suspension will depend upon what is afforded to the student in the ISS environment and whether the student is appropriately participating in the general curriculum there, receiving the services listed on his IEP and participating with nondisabled students to the same extent as contemplated by his current IEP. If not, then it is arguable that days served in ISS should be considered in determining whether a pattern of removals has occurred that constitutes a 'change of placement.'

Discipline of Students with Disabilities: Essential Point #7

In the July-August 2009 issue of In Case (Council of Administrators in Special Education), Julie Weatherly (attorney with the Weatherly Law Firm) begins a series of articles addressing the discipline of students with disabilities. Here is the seventh essential point...
"It is important to remember that disciplinary removals from school that are not formally considered 'suspension' or 'expulsion,' may still likely be removals that could constitute a pattern that is a 'change of placement.' Examples of such removals could include asking a student's parents to keep her home several days for 'home time out' or a 'cool-down period.' Similarly, moving the student to the principal's office or to another teacher's classroom all day every day could eventually constitute a change of placement that runs afoul the IDEA's procedural requirements. Even half-day removals from school could constitute a 'change of placement.' Indeed, in the commentary to the 2006 IDEA regulations, the U.S. Department of Education stated that 'portions of a school day that a child has been suspended may be considered as a removal in regard to determining whether there is a pattern of removals that constitutes a change of placement (71 Federal Regulation 46, 715).' When considering the use of removals that are not officially 'suspensions' or 'expulsions,' caution is advised when imposing such removals, and school personnel should maintain accurate data that tracks the use of such removals to ensure that an inappropriate 'change of placement' has not occurred outside of the placement process."

Lessard v. Wilton-Lyndeborough Cooperative School District, 49 IDELR 2, 180,518 F.3d 18 (1st Circuit, 2008)

According to the 1st Circuit Court, the parents in the case "read far too much into Congress' 1997 definition of transition services." It was their assertion that the Rowley standard of "some educational benefit" was no longer applicable with regard to transition services. In their decision the Court clarified the meaning of "outcome oriented process" in the IDEA's definition of transition services: "It specifies the perspective that participants in the process should strive to attain but does not establish a standard for evaluating the fruits of that process." The parent's argument that the student's IEP was inadequate and incomplete because it did not contain a separate "transition plan" was dismissed. The IEP in this case included several various transition services that were scattered throughout the document and "merely pointing to the absence of a stand-alone transition plan cannot form the basis for a founded claim of procedural error."

When Permission for Outside Agency Participation Must Be Obtained

According to Letter to Gray, 50 IDELR 198, (OSEP, 2008), "Since the conversations at each IEP Team meeting are not the same, and since confidential information about the child is always discussed, we believe that consent must be obtained prior to each IEP Team meeting if a public agency proposes to invite a representative of any participating agency that is likely to be respoonsible or providing or paying for transition services. Therefore, it is not permissible under this regulation for a public agency to obtain the consent of the parents or eligible child only one time before the transition planning process is initiated for the child until the child leaves school. Although your question also asks about obtaining the requisite consent on an annual basis, one annal onset would not be sufficient if there is more than one IEP Team meeting conducted during a 12-month period where a purpose of the meeting will be the conisderation of the child's postsecondary goals and the transaition services needed to assist the child in reaching those goals under 34 CFR Section 300.320(b)."

Determining When to Invite Public Agencies to IEP Meetings

In Letter to Caplan, 50 IDELR 168, (OSEP, 2008), the following guidance is given when determining if public agencies need to be invited to IEP meetings: "However, in determining whether a public agency must invite another agency to an IEP Team meeting conducted under 34 CFR Section 300.320(b), in general, you may wish to consider such factors as whether a purpose of the IEP Team meeting will be in the consideration of the postsecondary goals for the child and the transition services neded to assist the child in reaching those goals; whether there is a participating agency, other than the public agency responsible for providing a free appropriate public education to the child, that is likely to be responsible for providing or paying for the child's transition services; and whether the consent of the parents or the child who has reached the age of majority has been provided for the other agency's participation at the IEP Team meeting conducted in accordance with 34 CFR Section 300.320(b)."

Changes to the 2006 Final IDEA Part B Regulations Regarding the Role of Adult Services Organizations in the IEP Process

The 2006 final IDEA Part B regulations removed the 1999 requirement that "[i]f an agency invited to send a representative to a meeting does not do so, the [school district] shall take other steps to obtain participation of the other agency in the planning of any transition services." The IDEA never gave schools authority to compel another agency to participate in transition service planning. Furthermore, neither the IDEA nor case law offered useful guidance as to what those "other steps" might constitute. The Department of Education justified removing the requirement in the comments and discussion section of the 2006 regulations: "The Act has never given public agencies [such as school districts] the authority to compel other agencies to paritcipate in the planning of tranistion services for a child with a disability...Without the authority to compel other agencies to particpate in the planning of tranistion services, public agencies have not been able to meet the requirement...to 'ensure' the participation of other agencies in transition planning. Therfore, while we believe that public agencies should take steps to obtain the pariticpation of other agencies in the planning of transition services for the child, we believe it is unhelpful to retain [the 1999 regulation]." 71 Federal Register page 46, 672 (2006).

Transition Services Must be Provided Despite Student's Completion of Academic Requirements for Graduation

In Susquehanna Township School District v. Frances J. and Charles J. ex rel. Jelani J., 39 IDELR 5 (Pennsylvania Commonwealth Circuit Court 2003), a state court ruled in favor of a student and ordered a local school district to pay for one-year of a college prep program included in the student's transition plan. The district contended it owed no further duty to provide the student a free and appropriate education since the student had already graduated. The review panel indicated that transition services had not been provided as delineated in the student's IEP; therefore, all requirements of graduation had not been fulfilled and the district was obligated to provide the services.

Transition IEPs and Expressed Needs, Preferences, and Interests

In Sinan v. School District of Philadelphia, 48 IDELR 97 (E.D. Pa. 2007), the parents of a 19-year-old special education student contended the district failed to mention vocational and practical living goals in their child's IEP; therefore, the transition plan was incomplete. According to the parents, IDEA obligated the district to plan for a student's postsecondary vocational and practical training regardless of the expressed desires of the parents. According to the district, the plan called for the student to meet with college guidance counselors and that the transition plan was limited to college preparation rather than vocational goals at the parents' insistence. Observing that "case law does not offer strong support for the plaintiffs' proposition that the district has an affirmative duty to provide for vocational and practical training in all transition plans, without regard to a student's individual needs and preferences," the court held that "the transition plan's focus on college planning was appropropriate given [the student's] needs, preferences and interests at the time."

Transition Goals Cannot Be Vague or Generic

In Marple Newton School District v. Rafael N. ex rel R.N., 48 IDELR 184 (E.D. Pa 2007), a court concluded that an IEP was deficient because there were no "measurable postsecondary goals related to training, education, employment, and independent living skills for a Spanish-speaking mild to moderately retarded 17-year-old special education student with untreatable epilepsy. With regard to the IEP, the court stated the "goals are vague and do not capitalize on the student's strengths or specific interests." Furthermore, the student's IEP "states generic goals that have remained static from year to year. There were no vocational or independent learning outcomes in the community component of the IEP, there was no component to prepare the student for medical self-monitoring, and the IEP did not "take into account the student's strengths or preferences."

IEP teams need to be mindful when creating transition plans and ensure that each one is individualized and meaningful.

Texas Transition Plan was Designed to Provide FAPE

In K.C. b/n/f M.S. and W.C. v. Mansfield Independent School District, 52 IDELR 103, 618 F. Supp. 2d 568 (N.D. Texas 2009), the court held a transition plan was reasonably calculated to provide FAPE as it reflected the student's skills and interests, and included a series of practical goals that would help the student transition upon graduation. Subsequently, the district held no obligation to pay for the student's placement in a music academy for students with cognitive disabilities. The plaintiffs alleged the district disregarded a teenager's interest in music when developing her transition plan. The court determined the transition plan reflected the student's strong interests in fashion and child care and was reasonably calculated to help her meet her post-secondary goals based on the results of an occupational assessment provided by the district which indicated the student had both a high skill level and interest in the area of fashion, child care, and child development. The assessment also revealed a high interest in the performing arts but the skill score was "very low". Considering the results of the assessment, the IEP team developed a transition plan indicating the student would work in a clothing store and as a classroom aide in an elementary school music class. The student was dissatisfied with placement in the music class which was subsequently discontinued the following year so the district added one-on-one music instruction to the IEP. The court concluded the transition plan was based on an Occupational Assessment and was reasonably calculated to provide FAPE.

A Visit to Seneca High School

Yesterday I was able to observe a very engaging lesson in a resource classroom at Seneca High School. I arrived just before the bell initiating third period. It was evident non-instructional routines had been established as students knew where to find their notebooks. Before beginning instruction, the teacher explained what the class would do over the course of the next 90 minutes. The first item on the agenda included journal writing in response to real-world debatable issues. The teacher reviewed the questions students were expected to answer after watching CNN video clips. One video clip surrounded the controversy of whether or not suspected 9-11 terrorists should be tried in New York just blocks away from where the twin towers used to stand. The other video clip spotlighted a story where a student from another state was suspended for coming to school with his favorite football team's logo shaved into head. The teacher showed each clip separately reviewing the questions before, between and after watching the videos. The teacher then led an engaging discussion surrounding each debate asking students to share their views or interpretation. The teacher made sure every student participated and had an understanding of each controversial isssue. Unfortunately, I needed to leave before a review of y=mx + b, but I was so glad I was able to visit this teacher's class and strongly believe the students enjoyed the lesson as much as I did.

Self-sufficiency Standard is Refuted by 9th Circuit

The 9th Circuit Court affirmed that IDEA '97 did not raise the Rowley standard for determining whether an IEP offered a free and appropriate education (FAPE) when it overturned a District Court granting reimbursement to the student. The District Court held that by its description of transition services as intending to foster independent living and economic self-sufficiency IDEA '97 had adopted a new standard of FAPE. The Circuit Court stated:

"We conclude that the District Court misinterpreted Congress' intent. Had Congress sought to change the free appropriate public education 'educational benefit' standard--a standard that courts have followed vis-a-vis Rowley since 1982--it would have expressed a clear intent to do so. Instead, three omissions suggest that Congress intended to keep Rowley intact. First, Congress did not change the definition of a free appropriate public education in any material respect. If Congress desired to change the free appropriate public education standard, the most logical way to do so would have been to amend the free appropriate public education definition itself. Second, Congress did not indicate in its definition of 'transition services', or elsewhere, that a disabled student could not receive a free appropriate public education absent the attainment of transition goals. Third, Congress did not express disagreement with the 'educational benefit' standard or indicate that it sought to supercede Rowley. In fact, Congress did not even mention Rowley. J.L. v. Mercer Island School District, 52 IDELR 241 (9th Circuit 2009).

How Can the SOP Assist the Voc Rehab Services Program in the Provision of Transition Services to Eligible VR Students with Disabilities?

According to Questions and Answers on Secondary Transition, 52 IDELR 230 (June 1, 2009), in addition to providing information that may be used to determine a student's eligibility for VR services, the Summary of Performance (SOP) serves as a functional document that provides the Vocational Rehabilitation Services Program with information describing a student's vocational, employment, academic and personal achievements as well as vocational and employment supports needed by the student.
If determined to be eligible to receive VR services, the student, with the assistance of a VR counselor, develops an individualized plan for employment (IPE) to achieve a specific employment outcome. A SOP may facilitate the development of a meaningful IPE by providing information that describes the student's secondary and psotsecondary goals, career interests, levels of academic performance, need for reasonable accommodations for work, and the functional levels of the student's social and independent living skills, at the time of completion of secondary education.
In general, a SOP that informs the State VR Services program of the student's academic and vocational functional performance may minimize delays in the transition service delivery system and better prepare the student for a successful career.

What Obligations Does an LEA Have With Regard to the Summary of Performance and Vocational Rehabilitation and/or Post-secondary Accommodations?

According to Questions and Answers on Secondary Transition, 52 IDELR 230 (June 1, 2009), Section 614(c)(5) of the IDEA does not require the LEA to include in the Summary of Performance (SOP) the documentation necessary to determine a child's eligibility for another program or service, such as the State Vocational Rehabilitation Services Program (VR), or the child's need for accommodations in college or in other post secondary educational settings. However, the SOP may include information that may assist another program to determine a student's eligibility for services or accommodations. For example, section 102(a)(4) of the Rehabilitation Act of 1973, as amended, requires the State VR Services program to use information submitted by education officials to assist in making eligibility determinations for students with disabilities. The SOP is one of the educational records that may be used to provide information to determine a student's eligibility for VR services.
A postsecondary student who has identified him or herself as an individual with a disability and has requested academic adjustments, auxiliary aids or modifications of policies, practices or procedures from an institution of postsecondary education may, consistent with an institution's documentation requirements, provide the institution with the SOP as part of the documentation to be used by the institution to determine whether the student has an impairment that substantially limits a major life activity, as defined under Section 504 of the Rehabilitation Act (Section 504) and/or the Americans with Disabilities Act (ADA), and requires academic adjustments as defined in the Section 504 regulations at 34 CFR Section 104.44. Institutions may set their own requirements for documentation so long as they are reasonable and comply with Section 504 and the ADA.

Does a General Educational Development Credential (GED) or Alternate Diploma Trigger the Creation of a Summary of Performance (SOP)?

According to Questions and Answers on Secondary Transition, 52 IDELR 230 (June 1, 2009), the answer is "no". A public agency, pursuant to 34 CFR Section 300.305(e)(3), must provide a child whose eligibility for services under Part B of the IDEA terminates due to graduation from secondary school with a regular diploma, or due to exceeding the age of eligibility for a free appropriate public education (FAPE) under state law, with a summary of the child's academic achievement and functional performance. This Part B requirement does not apply to the group of children who leave secondary school with a GED credential or alternate diploma and whose eligibility for services under Part B has not terminated. See 34 CFR Section 300.102(a)(3)(iv), which clarifies that a regular high school diploma does not include alternate degrees, such as GED credential.

What is the Purpose of a Summary of Performance (SOP) and What are the Requirements for Content?

According to Questions and Answers on Secondary Transition, 52 IDELR 230 (June 1, 2009), the purpose of the SOP is to provide the child with a summary of the child's academic achievement and functional performance in order to assist the child to transition beyond high school. The SOP must include recommendations on how to assist the child in meeting his or her postsecondary goals. The Individuals with Disabilities Education Act does not otherwise specify the information that must be incuded in the SOP; rather, state and local officials have the flexibility to determine the appropriate content to be included in a child's SOP, based on the child's individual needs and postsecondary goals.

IEP Drop-in At Fair-Oak Elementary

Yesterday was a great day. I was able to participate in an IEP meeting at Fair-Oak Elementary. The student used to be one of mine as a 3-year-old! Throughout the meeting it was evident that every member of the team genuinely cared about the student and his progress. It was as if he was centered in the circle of chairs to the right. Undoubtedly, each educator put a lot of thought, planning, and collaboration time in prior to the meeting as each communicated professionally and respectfully with knowledge about the student's strengths, weaknesses and needs. Various forms of assessment results were presented supporting the team's recommendations. The parents left the meeting confident that the team had developed the best plan possible to meet their child's educational needs. Great meeting!

Must an LEA Measure Postsecondary Transition Goals Once a Student Has Graduated or Aged Out?

According to Questions and Answers on Individualized Education Programs (IEPs), Evaluations, ad Reevaluations, 47 IDELR 166 (January 1, 2007), the answer is "no". Under 34 CFR Section 300.101, a free and appropriate public education (FAPE) must me made available to all children residing in the state in mandatory age ranges. However, the obligation to make FAPE availble does not apply to children who have graduated from high school with a regular diploma (34 CFR Section 300.102(a)(3)) or to children who have exceeded the mandatory age range for provision of FAPE under State law (34 CFR Section 300. 102(a)(2)). When a child's eligibility for FAPE pursuant to Part B terminates under these circumstances, in accordance with 34 CFR Section 300.305(e)(3), the local educational agency (LEA) must provide a "summary of the child's academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child's postsecondary goals." However, this provision does not require the LEA to provide services to the child to meet these goals.

If an IEP Chooses to Address Transition Before Age 16 (South Carolina begins at age 13) are the Same Standards Required?

According to Questions and Answers on Individualized Education Programs (IEPs), Evaluations, ad Reevaluations, 47 IDELR 166 (January 1, 2007), the answer is "yes". The regulations provide, at 34 CFR Section 300.320(b), that beginning not later than the first IEP to be in effect when the child turns 16, or younger if determined appropriate by the IEP Team (or State), and updated annually, thereafter, the IEP must include-- 1) Appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; and 2) The transition services (including courses of study) needed to assist the child in reaching those goals. If the IEP Team for a particular child with a disability determines that it is appropriate to address the requirements of 34 CFR Section 300.320(b) for a child who is younger than age 16, then the IEP for that child must meet the requirements of 34 CFR Section 300.320(b).

Ringwood Board of Education v. K.H.J., 49 IDELR 63, 258 Fed. Appx. 399 (3rd Circuit, 2008)

In her presentation at the 19th Annual CASE (Counsel for Administrators in Special Education), Julie Weatherly mentioned a situation whereby a parent contended that the special education services provided by the district did not convey meaningful educational benefit. Her summary follows...
Where it is undisputed that the student has 'above average' intelligence, an Administrative Law Judge (ALJ) made a factual finding that the student had the 'potential of performing at least in the average grade level in reading', this hardly qualifies as 'maximizing' the child's potential. When students display considerable intellectural potential, IDEA requires a great deal more than negligible benefit. Because the student made only 'negligible progress' in the school district's program and was still one to two years behind grade level, the ALJ properly concluded that the Board had failed to provide FAPE.

Should Access to the Community be Included in the IEP as Independent Living Skills?

For some students with disabilities, the IEP team may determine appropropriate measurable postsecondary goals designed to improve independent living skills are necessary. If so, the team must also determine the type of transition services required to help the student achieve those goals. Transition services are "a coordinated set of activities for a child with a disability" that are intended "...to facilitate movement from school to post-school activities" and can include "independent living, or community participation" (34 CFR Section 300.43). If the results of an assessment of a student's independent living skills leads an IEP team to determine that access to the community is necessary for the student to receive a free and appropriate education, the team must design transition services to be included in the IEP that will help the student achieve those goals.

In South Carolina, Must IEPs Include Measurable Post-Secondary Goals Based on Age Appropriate Transition Assessments For Every 13-year-old Student?

Yes. All means all. Under 34 CFR Section 300.320(b), the IEP for each child with a disability, must, beginning not later than the first IEP to be in effect when the child turns 16 (in South Carolina beginning not later than the first IEP to be in effect when the child turns 13), or younger if determined appropriate by the IEP team, and updated annually thereafter, include:

1) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; and,

2) the transition services (including courses of study) needed to assist the child in reaching those goals.

Furthermore, postsecondary goals cannot use terms like "hopes to" or "aspires to" or "plans to". They must clearly state what the child "will do" upon graduation. Postsecondary goals must be updated regulary as career interests are likely to change over time.

LEAs Must Address the Issue of Extended School Year Services (ESY)

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. According to Weatherly, "Although many federal courts had recognized entitlement for some students to extended year services prior to 1999, not all of them had done so. However, IDEA regulations specifically provide for the annual consideration of the provisions of ESY services for every student with a disability. Under the regulations, each public agency must ensure that ESY is available as necessary to provide FAPE and that they are provided if a student's IEP team determines, on an individual basis, that the services are necessary for the provision of FAPE to the student." School personnel must gather and maintain appropriate documentation supporting the recommendation for ESY services.

Teams Shouldn't Be Overly Specific and Include Unnecessary Details or "Promises" in IEPs

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. According to Weatherly, "Although IEPs are required to contain educational goals and objectives, it is not expected that they be so detailed as to substitute for a daily lesson plan. Under IDEA, parents are not entitled to demand that items such as the specific teacher, the teacher's day-to-day schedule, curriculum, methodology or specific school site be included in the IEP. In addition, things like extracurricular and nonacademic activites should not be listed specifically on the IEP. Rather, any accommodations or support servies necessary for an otherwise qualified student to participate in a particular activity should be indicated on the IEP. School staff should be trained to respond that, though such things are worthy of discussion and clarification during an IEP meeting, none of these things are required to be directly written into the IEP."

What if a Child Who Has Exited From Special Education Services is Referred Again?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, an initial evaluation would be conducted to reestablish whether the child is a child with a disability who has a need for special education and related services, thus making the child eligible once again for special education services. The school would provide Prior Written Notice and request consent from the parents or adult student before beginning the evaluation. The evaluation must include a review of existing data. If the team determines the current available data are adequate for the purposes of eligibility determination, there do not need to be any further assessments conducted.

May a Student Participate in Graduation Exercises With His or Her Classmates, if She or He is Not Actually Graduating?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes". The student may participate in graduation exercises unless a local policy would not allow it. However, if there is such a policy, it must apply to all students and not just students receiving special education services. This would apply even if a student has met all of the requirements for graduation, but the IEP team determines that additional services are needed. Some students may require services until age 21 to meet IEP goals, which should be addressed within the student's transition plan. In either ase, the student could participate in graduation exerceses with his or her class, but not actually receive a diploma at that time.

What is Required When a Student with a Disability Graduates from High School?

According to South Carolina's Office of Exeptional Children Policies and Procedures released April 6, 2009, the LEA must provide the student, if age 18 or older, and the parents with a Prior Written Notice that clearly states that the student will no longer be entitled to receive special education services from the LEA after graduation. Informed parent consent is not required. Additionally, the school must provide the student with a Summary of Performance.

What if the Student No Longer Requires Special Education?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, th IEP team must determine whether the student no longer requires special education services based on data from a reevaluation. If, after a reevaluation, the team determines that the student is no longer eligible for special education services it must give parents Prior Written Notice of that determination and that the team is proposing to end services. If the parent disagrees with the decision, the parent may access medication or due process. The IEP team may also determine that the student qualifies as a student with a disability under Section 504 and refer the student to the Section 504 team, which would write a 504 plan for him or her.

Must a General Education Teacher in the Private School Participate in Developing, Reviewing, and Revising a Child's IEP or Serives Plan?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, a meeting to develop, review, and revise an IEP or a services plan must include all of the participants required for an IEP team meeting, including at least one general education teacher of the child (if the child is or may be participating in the general education environment). The general education teacher in the private school would meet the requirement for a general education teacher.

The LEA must also ensure that a representative of the private school attends each meeting to develop or revise a child's services plan. If the representative can not attend, the LEA must use other methods to assure a representative's participation, including individual or conference telephone calls. The participation of the child's private school teacher could meet this requirement.

Are Children Enrolled in or Placed in Private Schools Required to Take the District-Wide and State Assessments?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, if a child is placed in a private school by the LEA or public agency, the child is required to take the appropriate district-wide and state assessments. If the child has been enrolled in the private school by the parents, the child would follow the requirements of the private school. That may mean that he or she would not take the district-wide or state assessment if the private school was not in the South Carolina State Assessment system.

Is A Parentally-Placed Child With An IEP In A Private School Entitled To Both General Education And Special Education Services From The LEA?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "no". LEAs are required to provide special education and related services, but not to provide classes in the general curriculum for the private school child at the LEA. For example, if parents request that in addition to receiving physical therapy at the LEA, their child also be alowed to take physics, the LEA is not obligated to allow the child to take physics. Instead, the child would be required to enroll in the LEA as a full-time student in order to receive general educaiton services.

Who Is Responsible For The IEPs Of Children With Disabilities Who Are Placed In Private Schools By A LEA IEP Team?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, before placing a child with a disability in a private school or facility, the LEA must conduct a meeting and develop an IEP. The IEP team may place a child in a private school as the result of the initial IEP meeting or as the result of a meeting to review an existing IEP. However, at the meeting in which a child is placed in a private school, the LEA must ensure that a representative of the private school is present at the meeting or participates in the meeting through other means, such as individual or conference telephone call. After the initial IEP meeting, subsequesnt meetings to review the IEP may be conducted by the private school. A representative of the LEA must attend these subsequent IEP meetings. Although the services are proveded at the private school, the LEA remains responsible for asssuring that the IEP is implemented.

Discipline of Students with Disabilities: Essential Point #6

In the July-August 2009 issue of In Case (Council of Administrators in Special Education), Julie Weatherly (attorney with the Weatherly Law Firm) begins a series of articles addressing the discipline of students with disabilities. Here is the sixth essential point...

For purposes of discipline of a student with a disability, a 'change of placement' may also include short-term removals for more than 10 days cumulatively in a school year, depending upon the pattern of removals.
"In addition to defning a 'change of placement' to include disciplinary removals for more than 10 consecutive school days, the IDEA regulations define a 'change of placement' in terms of cumulative days of suspension as folows: For purposes of removals of a child with a disability from the child's current educational placement, a change of placement occurs if the child has been subjected to a series of removals that constitute a pattern because the series of removals total more than 10 school days in a school year; because the child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals; and because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another. 34 C.F.R. Section 300.536(2).
Using the above standard, the IDEA provides that an administrator and the student's special education teacher, at a minimum, are required to determine whether a pattern of removals that cumulate to more than 10 days in a school year constitutes a 'change of placement.' So, based upon the somewhat confusing language of the IDEA regulations, how is that done and when is it clear that a pattern of short-term removals is or is not a 'change of placement?' Unfortunately, the '10-day cumulative' language is not clear with respect to exactly which removls for more than 10 school days in a school year are a 'change of placement' and which ones are not. For that reason, it has been common practice for school districts to treat any removal beyond 10 days in a school year as a 'change of placement' and follow the applicable procedures for such a 'change of placement' to ensure that a removal is appropriate and will not be legally challenged. In addition, suspensions for more than 10 days in a school year are considered significant by the U.S. Department of Education in its monitoring process and , for that reason, is significant to State Educational Agencies when they are monitoring suspension numbers maintained by Local Education Agencies. While the law does not prohibit disciplinary removal of student with disabilities for more than 10 days in a school yfear, school districts must proceed with caution to ensure that a 'change of placement' has not occured when it has subjected a student with a disability to short-term suspensions totaling more than 10 days in a school year."

A Visit to Blue Ridge Elementary School

Yesterday I had the privilege of visiting several special education classrooms at Blue Ridge Elementary School. In the resource class, the teacher helped a new student feel welcome as she made introductions before getting to work. She explained to the group where they left off from on Friday and set the stage for expectations. She used effective questioning techniques to provide just the right amount of scaffolding during the lesson. All students were engaged every second and participated eagerly. Next, I visited the Preschool Intervention Program. The children moved from center to center based on interest. The teacher and aides fostered apppropriate socialization skills and provided a model when needed. Some children were encouraged to particpate in a small groups with an aide to work on vocabulary and colors. It was evident each child was cared for unconditionally. The next classroom I visited was a self-contained classroom for early elementary students. The teacher was highly organized and demonstrated mastery of differentiated instruction. Each student participated in an activity that was just right for their developmental level. The teacher had no less than 8 distinct areas for independent work. She worked individually with students targeting specific goals while an aide monitored the other students in their work areas. The activities were engaging and all students were interested in the activity that was planned just for them. Finally, the last classroom I visited was an upper elementary self-contained classroom. The students in this class portrayed a wide range of ability levels and the teacher demonstrated an understanding of each student's individual needs. This teacher was particularly strong in the area of effective classroom management skills and used a Smartboard to lead a whole group lesson allowing students to interact with technology and have fun while learning. I thoroughly enjoyed my visit to Blue Ridge Elementary. It is a beautiful school inhabited by folks dedicated to educating children.

Are Children Who Are Voluntarily Placed By Their Parents In Private Schools Or Homeschooled Entitled To Special Education Services in South Carolina?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the IDEA is clear that children enrolled in a private schol by their parents or homeschooled have no individual entitlement to special education and related servies. If children are part of a group agreed upon to receive services, they may receive the services offered by the LEA under a services plan, but there is no requirement for any particular child to receive any services.

What Qualifications Must The Staff Meet That Provide Special Education Services When The LEA Serves A Parentally-Placed Child In A Private School?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the special education services provided to parentally-placed private school children with disabilities must be provided by personnel meeting the same standards as personnel providing such services in LEAs. The LEA may use state and federal funds to make personnel available at the private school to the extent necessary to provide special education and related services to children enrolled by their parents in provate schools, if those services are not normally provided by the private schools. The LEA may use special education funds to pay for the services of an employee of a private school to provide special education and related services for children if both of the following conditions are met:

1. The employee performs the services outside of the employees's regular work hours
2. The employee meets the definition of a highly qualified teacher under SCDE regulations; and the employee performs the services under public supervision and control.
   
   

If A Child With A Disability Is Sent Home For Part Of A Day Is It Considered A Suspension?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes" if the suspension is at least 50% of the school day. Furthermore, if a child with a disability has a behavior intervention plan that calls for a removal from school and educational services are not provided during the removal, these days would be counted toward a long term suspension as well. Finally, if the school has a school-wide behavior plan for all students and a child with a disability reaches the pont where he or she is suspended, the team must consider all behaviors that led to the suspension during a manifestation determination.

With Regard To Manifestation Determination, What Is Meant By Conduct That Has A "Direct and Substantial" Relationship To A Student's Disability?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, one way that a student's behavior is determined to be a manifestation of the student's disability is when relevant members of the student's IEP team determine that the behavior in question was caused by, or had a "direct and substantial" relationship to the child's disability. The phrase "direct and substantial" has not been specifially defined. The only guidance to what is meant by the phrase "direct and substantial" is a statement in the comments to the federal regulations indicating that a behavior should not be determined to be a manifestation of a student's disability if the relationship of that behavior to the child's disability was merely "an attenuated association, such as low self-esteem." (Federal Register, August 14, 2006, pg. 46,720.)
With so little guidance regarding this question, it is useful to examine the plain meaning of the words themselves. Webster's dictionary defines the term "direct," as the term appears to be used in the context of a manifestation determination, as "proceeding in a stratight line or by the shortest course; straight; not oblique; proceeding in an unbroken line of descent." The term "substantial" is defined as "of ample or considerable amount, quantity, size, etc." See Webster's College Dictionary, Random House (Second Edition 1999). Accordingly, to have both a direct and substantial relationship to a student's disability, the student's behavior must be linked straight to the student's disability without the necessity of examining outside influences or effects and the link of the behavior to the disability must be one of ample or considerable proportion. This is a subjective standard and reasonable minds on the team may disagree. When that happens, the school representative on the team must make the final decision. A parent has a right to challenge the decision of a manifestation team through an expedited due process hearing.

Which Days Count?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, if a child without a disability has been disciplined, and during the disciplinary period the child was evaluated and found to be eligible for special education services, the days prior to eligibility in the current suspension would not count toward the child's 10 days. However all suspension days count towards the child's maximum of 30 total as reflected in state laws (S.C. Code Ann. Section 59-63-2004).

May A Child Be Placed In An Interim Alternative Education Setting More Than One Time Each School Year?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes"; however, an LEA can not order a second IAES for the same incident of behavior. A child could be placed in a short term IAES several times if the removals are not more than 10 consecutive days or if they do not constitute a change in placement. If a child brings a gun to school, the school officials could impose one 45 school day IAES, and if the school believes returning the child to his placement specified in the chiild's IEP at the end of the 45 school day period is substantially likely to result in injury to the child or others, the LEA could ask a special education due process hearing officer to order an additional 45 school days in the IAES placement.

Who Determines The Interim Alternative Education Setting?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009,

it depends on the behavior and the situation in which the determination is being made. The LEA can determine the IAES for a short-term removal for 10 consecutive school days or less, or for a short-term removal of more than 10 days that does not constitute a change in placement. When the child is being removed for more than 10 school days and the behavior is not a manifestation of the child's disability, the IEP team will determine the IAES.

For behavior relating to drugs, weapons, or serious bodily injury the decision regarding IF a student is ordered to an IAES is made by designated school officials. However, the decision of WHERE that setting will be is made by the child's IEP team. For behavior substantially likely to result in injury to the child or others, the decision regarding an appropriate IAES is made by a special education due process hearing officer (34 C.F.R. Section 300.532(b)(2)(ii)).

Do The Discipline Provisions Of IDEA 2004 Extend To Children Who Are In The Process Of Being Identified As Eligible For Special Education Services?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes". Federal regulations for the IDEA 2004 state that if a school had knowledge that the child is a child with a disability, the child is covered under these provisions. An LEA is deemed to have knowledge if a teacher or other personnel have expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education or to other supervisory personnel or if the parent of the child requested an evaluation. Records from the general education intervention provide documentation that if there was a suspected disability at some time in the past, the school made the determination whether or not the child should be referred for an initial evaluaion to determine eligibility. Therefore, it is important for schools to maintain records on children as such data could be important should a disciplinary proceeding occur later.

May A Student With A Disability Be Suspended From The Bus?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes". Children with disabilities may be suspended from using public school transportation even though they are not suspended from school. However, bus suspension may affect the LEA's requirement to provide FAPE. If special education services are needed for the child to receive a FAPE and the child needs transportation to receive special education services, transportation would be needed and must be addressed by the IEP team. The following guidance to LEAs to determine if school days for bus suspension count as school days for change of placement and provision of services may be useful:

• The LEA is always required to provide a FAPE. If a child with a disability can not get to school to benefit from special education services, it is likely that the school is required to continue to provide transportation in some manner.
• If transportation is specified as a realted service on the IEP, school days of suspension from bus transportation would count in determining if a change of placement occurs and in the provision of services unless the LEA provides transportation some other way.
• If transportation is NOT required as a related service under the IEP, school days of suspension from the bus should NOT count as school days of suspension for change of placement and provision of services. In such cases, the child's parents have the same obligation to get the child to and from school as a child without disabilities who has been suspended from the bus (unless the parents can not provide the needed transportation). Also, if bus transportation is not included on the IEP, the comments to the regulations suggest a suspension from transportation privilieges may indicate the IEP team should consider whether that behavior on the bus should be addressed within the IEP or a BIP for the child. (Federal Register, August 14, 2006, p. 46715).