Bright's Blog

Under What Circumstances Must An IEP Team use FBAs and BIPs?

2011-12-15T05:42:00.000-08:00

My daughter took this picture of a friend's gazebo in Cairo.

Pursuant to 34 CFR section 300.530(f), FBAs and BIPs are required when the LEA, the parent, and the relevant members of the child's IEP team determine that a student's conduct was a manifestation of his or her disability under 34 CFR section 300.530(e). If a child's misconduct has been found to have a direct and substantial relationship to his or her disability, the IEP team will need to conduct a FBA of the child, unless one has already been conducted. Similarly, the IEP team must write a BIP for this child, unless one already exists. If a BIP already exists, then the IEP team will need to review the plan and modify it, as necessary, to address the behavior.

For a child with a disability whose behavior impedes his or her learning or the learning of others, and for whom the IEP team has decided that a BIP is appropriate, or for a child with a disability whose violation of the code of student conduct is a manifestation of the child's disability, the IEP team must include a BIP in the child's IEP to address the behavioral needs of the child.

2011-10-14T14:27:00.000-07:00

Yes...my daughter is still in Cairo. She took this picture of a father and son riding on a burro. I believe she still prefers a cab.

In Johnston County (NC) Schools , 56 IDELR 305 (OCRXI, D.C. (NC) 2011), the Office for Civil Rights (OCR) determined that a school district violated Section 504 of the Rehabilitation Act of 1973 when it conducted a manifestation determination review (MDR) after a student with ED and ADHD completed his suspensions. OCR explained that under Section 504 a reevaluation, including a MDR in the case of a disciplinary exclusion, must occur prior to a signficant change of placement. On February 5, 2010, the school district imposed a 10-day suspension to take effect the same day. However, the district had suspended the student two times earlier in the year. When MDR concluded that the student's conduct was a manifestion of the student's disability the parent claimed the school district violated Section 504 by imposing suspension prior to the MDR. In the case of a series of short-term suspensions, the MD review must occur prior to the last in a series of suspensions that cumulatively amount to more than 10 days.

2011-03-15T09:34:00.000-07:00

Yes...it has been a long time since my last post. I've been working feverishly on my research to finish my dissertation. What a sweet day it will be when it is said and done! My daughter came home from Cairo for two weeks during the protests then returned as soon as Mubarak stepped down and classes at the American University in Cairo resumed. Here is another pic from the cab on our way to tour the pyramids last August.

Perry A. Zirkel, University Professor of education and law at Lehigh University, requested that I share the following opportunity with my readers:

Special Education Law Symposium 2011
June 26 - July 1, 2011
Lehigh University is offering its successful and intensive one-week Special Education Law Symposium under the co-direction of Drs. Perry Zirkel and James Newcomer. Presenters at the Institute will provide a practical analysis of legislation, regulations, and case law relating to the education of students with disabilities. Featuring a faculty of legal experts from several states, the program offers two parallel tracks—one for basic and the other for advanced practitioners. The workshop is offered alternatively for graduate or continuing education credit.
The keynote speaker will be Dr. Melody Musgrove, Director of the Office of Special Education Programs, U.S. Department of Education.
To view the program details or register, visit our website: http://www.lehigh.edu/education/law
and follow us on Facebook: Special Education Law Symposium - Lehigh University.

For questions contact Sharon Fehlinger at srf5@lehigh.edu or 610-597-4643. Please disseminate this information to any interested colleagues.

Parental Consent for the Initial Provision of Special Education and Related Services

2010-11-12T05:20:00.000-08:00

This is a picture of my daughter standing on the balcony of our hotel (Dusit Thani) in New Cairo. There was an "oasis" outside our window but beyond that is it mostly sand and new construction homes.

The Special Education Process Guide for South Carolina revised 10/1/10 clarifies that when a parent provides consent for the initial provision of special education and related services it does not mean the parents are consenting to each service included in the initial IEP developed for their child. This consent requirement only applies to the initial provision of special education and related services generally, and not to the particular special education and related services to be included in the child's initial IEP. In order to give informed consent to the initial provision of special education and related services under 34 CFR Section 300.300(b)(1), parents must be fully informed of what special education and related services are and the types of services their child might need, but not the exact program of services that would be included in an IEP to be developed for their child. Once the LEA has obtained parental consent and before the inital provision of special education and related services, the IEP team would convene a meeting to develop an IEP for the child in accordance with 34 CFR Sections 300.320 through 300.324.

What About a Guardian Ad Litem?

2010-11-11T10:35:00.000-08:00

This is a random picture I took while traveling from the Cairo International Airport to our hotel. Notice all the sand on the road...

Page 46566 of the comments to the IDEA 2004 regulations explains "We agree that guardians with limited appointments that do not qualify them to act as a parent of the child generally, or do not authorize them to make educational decisions for the child, should not be considered to be a parent within the meaning of these regulations." What this means...there are differnt kinds of guardians who serve in different roles as authorized by the State. In South Carolina, a Guardian ad Litem is a volunteer trained to perform five important functions: investigator, reporter, spokesperson, monitor, and protector. This person would not be able to make educational decisions on behalf of the child (e.g., receive notice, give or revoke consent, file formal complaints, request mediation, file for a due process hearing, give or deny permission for release of records, etc.) unless a court authorized them to act as a child's parent. If in doubt, school officials need to ask for documentation from a court authorizing the guardian to make educational decisions.

What About Step-Parents?

2010-11-05T04:16:00.000-07:00

Another view of Cairo from the plane...

A letter from the Family Policy and Compliance Office dated August 20, 2004 clarifies the term "parent" includes natural parents, a guardian, or an individual acting as a parent in the absence of a parent or a guardian. The Department has determined that a parent is absent if he or she is not present in the day-to-day home environment of the child. Accordingly, a stepparent has rights under the FERPA where the stepparent is present on a day-to-day basis with the natural parent and child and the other parent is absent from that home. In such cases, stepparents have the same rights under the FERPA as do natural parents. Conversely, a stepparent who is not present on a day-to-day basis in the home of the child does not have rights under the FERPA.

Who is Considered to be a Parent?

2010-10-25T04:36:00.000-07:00

A view of Cairo from the plane...

34 C.F.R. Section 300.30 defines the term "parent":
Parent includes a biological or adoptive parent; a guardian; a foster parent; an individual acting as a parent in the absence of a biological or adoptive parent or a guardian, who has legal responsibility for the child's welfare (including a grandparent, stepparent, or other relative); or a surrogate parent.
With regard to non-custodial parents, as long as the non-custodial parent's rights are not terminated or restricted through a court order, the non-custodial parent has equal rights to access the student's education record. The non-custodial parent retains the right to review or amend the records and consent to the disclosure of his or her child's records.

Surrogate Parent Information

2010-10-15T04:30:00.001-07:00

That's me in the sunglasses with my daughter (blue scarf) and our friend Ai. Yes...that is the Sphinx between the two pyramids.

Here are some surrogate parent tips:

Each public agency must ensure a surrogate parent is assigned for a child with a disability when: no parent can be identified; the public agency, after reasonable efforts, cannot locate a parent; the child is a ward of the State; or the child is an unaccompanied homeless youth (34 CFR Section 300.519)
The surrogate parent may not be an employee of the state educational agency (SEA)/LEA/or other agency involved in the education or care of the child
The surrogate parent may be an employee of a non-public agency that only provides non-educational care for the child
The SEA must ensure surrogate parents are appointed not more than (30) days after determination of need
Surrogate parents must have knowledge and skills that ensure adequate representation for the child
A foster parent may serve as the surrogate parent if (s)he has no interest that conflicts with the child's interest and is willing to make educational decisions required of parents under IDEA

What Constitutes an Educational Record?

2010-10-12T04:33:00.000-07:00

Another pyramid/camel pic...

So, what constitutes an educational record under FERPA?

Educational records are records directly related to a student and maintained by an educational agency or institution or by a party acting for the agency or institution.

They may include, but are not limited to:

academic work completed by a student;
attendance data;
scores and test protocols of standardized intelligence, aptitude, and psychological tests
interest inventory results;
health data;
family background information;
information from teachers or counselors;
documentation regarding student behaviors;
individualized education programs (IEPs);
IEP meeting minutes of conference summaries;
documentation of parent notice and consent;
videotapes, such as a videotape of a student with a disability made by a physical therapist working with the student; and
audio tapes of IEP meetings.

FERPA and IDEA

2010-10-07T05:37:00.000-07:00

This is St. George's Church in Old Cairo. There is a dungeon under the church we toured. Very dark, cramped, stuffy. Not a place I'd want to be.

The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student education records. The law applies to all schools that receive funds under a United States Department of Education program, including Head Start programs. (20 USC section 1232g; 34 CFR Part 99)

The state must also have policies and procedures in effect to ensure that public agencies in the state comply with 34 CFR sections 300.610 through 300.626 related to protecting the confidentiality of any personally identifiable information collected, used, or maintained under Part B of the IDEA.

What rights are available under the IDEA and the FERPA?

34 CFR section 300.613--Access rights

Parents or eligible students have the right to inspect and review the student's education records maintained by the LEA.
The LEA must comply with a request without unneccessary delay and before any meeting regarding an IEP, any due process hearing pursuant to section 300.507, any due process hearing related to the discipline provisions in sections 300.530 through 300.532, or a resolution session pursuant to section 300.510.
In other situations the LEA must comply no later than 45 calendar days after the request is made.

Common PLAAFP Errors

2010-10-01T05:13:00.001-07:00

Here is another pic of Old Cairo. There is a solid gate at least a foot thick at the entrance of this part of the city. Our guide explained that many, many years ago this area was inhabited by the Christian population.

Here is a list of common errors found in the Present Levels of Academic and Functional Performance section of IEPs:

Writing vague descriptions of academic and/or functional needs
Writing statements that are not related to a student's disability
Writing statements based solely on a standardized battery of tests
Writing PLAAFP statements that are not individualized
Using a student's disability as the PLAAFP statement

PLAAFP Checklist

2010-09-22T05:00:00.000-07:00

Here's a picture of my daughter and a different angle shot of the courtyard of the Hanging Church in Old Cairo.

Here is a Present Levels of Academic and Functional Performance Checklist to help in covering the bases...

Is the statement written in understandable language and is clear to everone on the team?
Is the statement precise enough to lead to measurable annual goals?
Does the statement describe how the student's disability affects educational performance?
Does the statement explain how the student's disability affects his or her participation in the general education setting?
Does the statement describe only the unique needs that will be addressed in the IEP?
Do all needs identified in the statement lead to an annual goal, special education service, or both?

Gathering Information for the PLAAFP

2010-09-20T04:42:00.001-07:00

Another Cairo pic...this is the courtyard entrance to the Hanging Church mentioned in a prior email. It is the most famous Coptic Christain Church in Cairo.

Gathering information and writing the Present Levels of Academic and Functional Performance (PLAAFP) can be a daunting task. Basically, there are four things to consider and address in the narrative:

Determine the student's current academic strengths and needs
Determine the student's current functional strengths and needs
Determine how the student's academic and functional needs are discrepant from expected levels of academic and functional skills
Determine what amount of growth can be expected within one year's time that will significantly close this gap.

Some of the common errors in this section include:

Writing vague descriptions of academic and/or functional needs
Writing statements that are not related to a student's disability
Writing statements based solely on a standardized battery of tests
Writing PLAAFP statements that are not individualized
Using a student's disability as the PLAAFP statement

One final challenge... this section needs to pass the "stranger test". Can a parent or teacher read this section and understand what it means?

Academic and Functional Strengths and Needs

2010-09-17T04:40:00.001-07:00

Another Cairo pic. I shopped a store called Spinney's to get staples for my daugher's dorm. It was pretty much like our Walmart on Black Friday...very crowded with long lines. Keep in mind I was by myself and the only Arabic I know is "hello", "yes", and "thank you". I was so glad to make instant friends while waiting to pay the bill. One of them spoke English and wanted a picture of me. I kept the receipt as a token although I can't read it!

Section II of the EXCENT IEP is where case managers provide a description of the academic and functional strengths and needs of the student and how the disability affects involvement and progress in the general curriculum. For preschoolers, involvement in appropriate activities and desribed. This section is very important as it provides the starting point for all decisions regarding an IEP. It might be helpful to think about this section as an opportunity to explain in words what the student is like in the event they transfer to another teacher who needs to learn about their new student without the luxury of a phone call. When doing IEP Folder Reviews, I make a 4-square grid at the top of the section and write AS (academic strengths), AN (academic needs), FS (functional strengths), and FN (functional needs) in the boxes. I check them off as I read a description of each in this section to make sure all four are addressed. This section must provide rationale for the unique need for special education by comparing the student's performance to that of his/her classroom peers. An example of a FN description of behavior might read like this "Hannah has difficulty staying on task during instruction. During three structured onservation periods, she was on task an averge of 54% of the time observed. Her peers were on task an average of 88% of the time observed. Hannah's difficulty remaining on task results in low achievement in classes that require sustained attention to task.

I'll continue this section on the next entry...

Diploma versus Certifcate in Section I

2010-09-15T05:07:00.000-07:00

Another Cairo pic...This is a friend of mine (Said) who writes for a German magazine (he is holding it up). Said is standing in front of one of the Great Pyramids and if you look closely you can see the silouette of the Sphinx. One of his most recent pieces was about education in Cairo. He speaks fluent Egyptian, German, and English!

Section I of the EXCENT IEP also address whether or not a student with disabilities is working toward a regular state high school diploma or a certificate. The important thing to remember here is that the State Certificate and the District Attendance Credential are two very different documents. The South Carolina High School Certificate is earned by students who have at least 24 Carnegie Units but failed to pass all subtests of the HSAP. Our Oconee County High School Certificate is for students with disabilities who have not earned the required units of credit or passed exit examinations; however, they have met attendance requirements and have fulfilled the requirements of their Individualized Education Plans.

2010-09-15T04:29:00.000-07:00

Another Cairo pic...we toured the Saint Virgin Mary's Coptic Orthodox Church in Old Cairo. It is also called the Hanging Church as it sits above a gatehouse of the Babylon Fortress. Experts believe it was likely built around 690 to 692. Awesome!

Continuing with the last two transition services listed in Section I of the EXCENT IEP, the Development of Employment and Post School Objectives are components of a transition program that “the student needs to achieve desired post-secondary goals. These could be services leading to a job or career or those that support activities done occasionally such as registering to vote, filing taxes, renting a home, accessing medical services, filing for insurance or accessing adult services such as Social Security Income ”. And finally, a Functional Vocational Evaluation is one component of a transition program that is included “if appropriate”. This evaluation involves “an assessment process that provides information about job or career interests, aptitudes, and skills. Information may be gathered through situational assessment, observations or formal measures, and should be practical. The IEP team could use this information to refine services outlined in the IEP”.

Source: Storms, J., O’Leary, E., & Williams, J. (2000). Transition requirements: A guide for states, districts, schools, universities and families. Eugene: University of Oregon, Western Regional Resource Center

2010-09-02T04:37:00.000-07:00

That is me on the back of a camel in front of the pyramids. My daughter and I traveled to Egypt to get her moved into the American University of Cairo where she will study for two years. What an adventure!

Picking up from my last blog entry...transition services should focus on academic and functional achievement to facilitate movement from school to post-school life and can involve the acquisition of daily living skills and related services in addition to instruction, community experiences, the development of employment and post-school objectives, and functional vocation evaluation. The need for acquisition of daily living skills typically applies to lower functioning students who already have annual goals in this area. Related services for transition are similar to the related services in an IEP that are needed for a student to meet their post-secondary goals. Examples might be occupational therapy, physical therapy, interpreting services or perhaps counseling. I'll finish up the topic of transition services (i.e., development of employment and post-school objectives and functional vocational evaluation) in my next entry. It is good to be home!

Transition Services

2010-08-20T04:54:00.000-07:00

Transition services should focus on academic and functional achievement to facilitate movement from school to post-school life. Transition services can be instruction, community experiences, acquisition of daily living skills, related services, development of employment and post-school objectives, and functional vocation evaluation. In Oconee County, we have a Students Transitioning to Adult Roles in Society (STARS) program for our certificate track students. Participation in STARS, Vocational Transition, or Vocational Rehabilitation does not automatically mean the "Community Experiences" box in the Transition section of the IEP is checked. If the "Community Experiences" box is checked, it means there must be a need for the student to participate in a community experience to meet their post-secondary goal and there must be a community experience goal in the IEP. For example, if a student has trouble staying in his assigned work area then the IEP could have an annual goal such as "Amanda will stay in her assigned work area at least 35 out of 40 minutes over 3 consecutive work days." I will address the remaining transition services over the next few blog entries.

SC Career Cluster

2010-08-19T04:46:00.001-07:00

I was having problems with blogger yesterday. It took several attempts to get my entry to post...then the last paragraph was chopped off. Things seem to be working better this morning so yesterday's entry has been "repaired".

Today's transition topic is short and sweet and concerns the SC Career Cluster. IEP teams and guidance counselors will need to work together to make sure the SC Career Cluster in Section I of the EXCENT IEP matches the Career Cluster in the Individual Graduation Plan (IGP) of students with disabilities. Seeing as how student career interests are likely to change over the years, it is possible that students with disabilities might meet with their career counselors to change their IGPs. When this happens, special education teachers need to know so they can make the same changes to the IEP.

Post-Secondary Goal Must be Based on Age-Appropriate Transition Assessment

2010-08-18T04:32:00.001-07:00

Please remember that IEPs must show evidence that measurable post-secondary goals(s) were based on age-appropriate transition assessments. This evidence is documented in two places in the IEP in EXCENT: Section I under "Student interests and preferences" and Section II under "Present Levels of Academic Achievement and Functional Performance". Here are some examples of evidence showing that post-secondary goal(s) were based on age-appropriate transition assessments under Section I "Student interests and preferences":

"Based on the Kuder Career Planning System, Shaquille's top four carreer clusters are..."

"According to the results of the Becker Work Adjustment Profile, Amy's work attitude and work habits..."

"An interview with Michael revealed his interests and preferences to be..."

There are numerous transition assessments developed for various ages and ability (e.g., Skills Assessment Module, the Becker Reading Free Vocational Interest Inventory, SCOIS). Please remember to show evidence that measurable post-secondary goals(s) were based on age-appropriate transition assessments by listing them in Section II under "Present Levels of Academic Achievement and Functional Performance" as well. Since we can no longer type "See attached reports" in the findings section, it will be necessary to summarize the results. If the teacher conducts an interview with the student, the interview form must be signed and dated by the student and teacher. If you have questions about transition, please contact Betsy Burkett, SDOCs Transition Facilitator, at extension 4427.

Transition Services

2010-08-17T04:23:00.000-07:00

Transition service needs must be discussed for students age thirteen and older during the effective dates of the IEP. They can also be discussed for younger students if the parents(s) or the IEP team determine it is appropriate. What this means is that every student age thirteen and older during the effective dates of the IEP must have a post-secondary goal reported in the transition section (Section I) of the IEP. This goal must address education or training and employment, or for low functioning students, the transition goal might be to learn indendent living skills. The wording of the transition goal is like an IEP goals in that you must use the words "will study" or "will attend" (education and training) and "will become" (employment). IEPs are out of compliance if they use wording like "hopes to become", "aspires to be employed", or "will seek a job". Think about it like this...we do not write a goal for math using the wording "When given 25 mixed conversions (fraction to decimal to percent), Brandon hopes to respond correctly to at least 20 within 20 minutes by the annual review date of the IEP". If you have questions about writing post-secondary goals, please contact your curriculum coordinator in special services or Betsy Burkett (ext. 4427) our Transition Facilitator. Thanks for doing your best to keep SDOC in compliance with South Carolina's Indicator 13 of the State Performance Plan.

First Day for Students

2010-08-16T04:24:00.001-07:00

Good Morning! I wish you all of you an exciting and smooth start back to school. It was wonderful seeing the buses on the road this morning and students waiting at bus stops ready to see their friends and get back to work. The Department of Special Servies will be out in the schools for most of the day providing support and making sure needs are met. The schools are divided as follows:

Kent: BRE, NSE, West Elem, SMS

Sam: JMB, Keowee, Wal Elem, Wal MS, Wal HS

Melissa: OPE, Ravenel, Adult Ed, Code LC

Marge: FOE, OIS, WOMS, WOHS, TSE, TSMH, SHS

I look forward to seeing students and teachers today. Have great first day of school!

Definition of a Parent In South Carolina

2010-08-13T06:09:00.000-07:00

Sometimes I get invitation letter questions about situations where the parents of a student with a disability are divorced and one parent has custody and the other doesn't or the student is in custody of an organization or individual rather than the biological parents. I am hoping this state definition of a "Parent" will help in choosing who to include on an invitation letter.

B. DEFINITION OF PARENT

LEA personnel must determine the appropriate person(s) to make educational decisions on behalf of the child. Those individuals have a right to receive notice, give or revoke consent, file formal complaints, request mediation, file for a due process hearing, give or deny permission for release of records, etc.

In South Carolina “parent” is defined as:

a) Parent means
(1) A biological or adoptive parent of a child;
(2) A foster parent, unless state law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent;
(3) A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child (but not the state if the child is a ward of the State);
(4) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or
(5) A surrogate parent who has been appointed in accordance with 34 C.F.R. § 300.519 of the IDEA. (S.C. Code Ann. § 63-1-40 (2008))

If there is more than one party qualified to act as parent and the biological or adoptive parent attempts to act as the parent the biological or adoptive parent must be presumed to be the parent and legal decision-makers unless the biological or adoptive parent does not have legal authority to make educational decisions for the child. A judge may decree or order a person acting as a parent or legal guardian to act as the “parent” to make educational decisions about the child. The LEA must recognize this person(s) as the legal decision maker for the child. (34 C.F.R. § 300.30 (b)(1)(2)).

Transition Service Participants in an IEP Meeting

2010-08-12T04:20:00.000-07:00

IDEA 2004 300.321(b), describes transition service participants in an IEP meeting:
(1) In accordance with paragraph (a)(7) of this section [see my blog entry for 8/11/10], the public agency must invite a child with a disability to attend the child's IEP Team meeting if a purpose of the meeting will be the consideration of the postsecondary goals for the child and the transition services needed to assist the child in reaching those goals under 300.320(b).
(2) If the child does not attend the IEP Team meeting, the public agency must take other steps to endure that the child's preferences and interests are considered.
(3) To the extend appropriate, with the consent of the parents or a child who has reached the age of majority, in implementing the requirements of paragraph (b)(1) of this section, the public agency must invite a representataive of any participaing agency that is likely to be responsible for providing or paying for transition services.

Please remember that in South Carolina transition services must be addressed for any student with an IEP aged 13 or older or if the student will turn 13 sometime during the life of the IEP. Betsy Burkett (ext 4427) is the Transition Coach in SDOC and is available to assist with transition questions.

The IEP Team

2010-08-11T04:27:00.000-07:00

IEP case managers: please refresh yourselves with IDEA 2004 Section 300.321 which provides guidance on the composition of the IEP team. It states:

(a) General. The public agency must ensure that the IEP Team for each child with a disability includes--

(1) The parents of the child;

(2) Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment);

(3) Not less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child;

(4) A representative of the public agency who--

(i) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

(ii) Is knowledgeable about the general edcuation curriculum; and

(iii) Is knowledgeable about the availability of resources of the public agency

(5) An individual who can interpret the instructional implications of evaluation result, who may be a member of the team described in paragraphs (a)(2) through (a)(6) of this section;

(6) At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

(7) Whenever appropriate, the child with a disability.

It is always advised to schedule your IEP meetings at least a week in advance of the annual review date just in case for some reason you have difficulty getting the IEP team together. It can be quite challenging to find a commonly agreed upon day and hour to get several busy people together around the table. Keep in mind that it is perfectly acceptable to hold a conference call with the parent and other IEP team members when the parent is unable to participate. Just be sure to have each team member introduce himself/herself so the parent is aware of who is in the room.

I will address IEP team participation requirements for students eligible for transition services tomorrow. Have a great day!

Listing of Parental Rights

2010-08-10T04:19:00.000-07:00

It is a maxim that special education requires extensive paperwork comprising numerous checked boxes in addition to narratives on IEPs and related documentation. One very important box that must be checked on the Notification of Meeting (Invitation Letter) is the Listing of Parental Rights or what most of commonly refer to as the Procedural Safeguards Notice (PSN). The very first page, first paragraph, of the PSN explains that according to 34 CFR Section 300.504(a), a copy of the PSN must be given to parents only one time a school year, except that a copy must be given to the parents also: (1) upon initial referral or parent request for evaluation; (2) upon receipt of the first State complaint under 34 CFR Sections 300.151 through 300.153 and upon receipt of the first due process complaint under Section 300.507 in a school year; (3) when a decision is made to take a disciplinary action that constitutes a change of placement; and (4) upon parent request. In SDOC, we document proof of annually presenting the PSN to parents annually by checking the Listing of Parental Rights on the Notification of Meeting for all annual reviews and special reviews applicable to items 1-4 above. Please remember to check this very important box when appropriate. Thanks for all your hard work!

Welcome Back SDOC Special Educators!!!

2010-08-09T10:31:00.000-07:00

For educators, the first day back to school is very much like New Year's Day. It is an opportunity for a fresh start...a resolution to do better than the previous year. Our special education teachers work tremendously hard and are dedicated to improving outcomes for students with disabilities. They spend several hours developing IEPs that serve as road maps to improved outcomes and spell out what districts will do to ensure a free and appropropriate education for each student. My blog entries at the beginning of this school year will focus on some reminders for teachers when developing IEPs. An IEP folder review conducted over the summer revealed the need for some refresher tips. For example, in Section I of the IEP, there is a box for Excluding Summer Months. Unless a student is being served at one of our year-round camps (Wilderness Way Camp School or Fairplay Wilderness Camp School) this box will be checked. Also, if an IEP will span two grade levels, the Grade for this IEP section should indicate such (e.g. 7-8). Please check my blog regularly for additional tips and other information related to the provision of special education services. Have a great year!!

No Consent for the 3-year Reevaluation

2010-05-28T04:35:00.000-07:00

In Gwinnett County School District, 53 IDELR 341 (SEA GA 2010), a parent did not provide consent for the triennial revaluation of their child with a disability. The IEP team resorted to reviewing data with regard to progress toward IEP goals and objectives, anecdotal reports, and test results. Ultimately, the team determined there was enough documentation to make an elibility determination that the student continued to have a disability and needed special education services. An administrative law judge determined the placement was appropriate and that proposed goals were adequate. When parents choose not to sign consent for re-evaluation, IEP teams should examine existing data from the following sources: the student (ask what his/her strengths are), teachers, disciplinary reports, progress toward the current IEP, guidance counselors, behavior observations, assessment results, outside agencies (if you have a release for information), and parents.

Parent of a Student with Asperger Syndrome and ADD Revocates Consent for IDEA Services

2010-05-24T04:32:00.000-07:00

In Jefferson County Board of Education, 110 LRP 2743 (SEA AL 9/29/09), an Independent Hearing Officer (IHO) ruled a local education agency did not violate IDEA when a parent asked the district to find her child eligible for special eduation services a second time around. The parent withdrew her child from school after several disciplinary infractions then reenrolled her child 6 months later and signed a document revoking consent for special education services. Following an incident involving a smoke bomb, a hearing officer ordered the student to attend boot camp for 30 days. The parent then sought placement back into the special education program due to health concerns of her child. When the district correctly treated the referral as an initial evaluation for IDEA services and scheduled a meeting, the parent initiated due process alleging a denial of FAPE as services were not reinitiated automatically. The IHO wrote, "While it appears that the [IDEA amendments on revocation] do not clarify such an issue,... it appears cross-purpose to anticipate that the parent can turn on and off the services like a water faucet."

Congratulations West-Oak Middle School!

2010-05-20T04:28:00.000-07:00

I am continually inspired by the dedication, hard work and passion exhibited by our special education teachers. Way to go Joey Bryson and Cynthia Opperman for working diligently to earn a $5,000 Toolbox for Education grant awarded by Lowe's Charitable and Educational Foundation. The money will be used for creating a hands on career development and exploration center for at-risk students. West-Oak Middle is one of more than 450 schools or parent organizations to be awarded a Lowe’s Toolbox for Education grant for school improvement projects benefiting K-12 public education across the United States during the 2009-2010 school year. The goal of the program is to help students take ownership of their education and ultimately decrease the drop-out rate of our at-risk student population. Career exploration in business and marketing, home and consumer science, manipulatory processing and production, and industrial technology will be offered. Students will experience what it is like to be an employee in a real-work setting as teachers take on the role of supervisor and assign duties requiring problem-solving, locating materials, following written directions, and documenting performance. The project is scheduled to be up and running by fall of 2010. I am sincerely looking forward to visiting this program next year. Kudos to Cynthia and Joey for doing what it takes to see their vision come to fruition!

A Special Graduation at WOHS

2010-05-14T04:46:00.000-07:00

Yesterday I had the honor of presenting closing remarks at the graduation celebration of the T-Warrior and F-Troop classes at West-Oak High School. Three T-Warrior students (Daniel Hightower, Patrick McKay, and Samuel Padilla) donned their caps and gowns to walk across the stage and accept their certificates of achievement. The program was emotional for several participants as students from both classes signed to inspirational songs like "Do I Make You Proud", "Who I Was Born To Be", and "What the World Needs Now." A senior slide show presented photograhs of the graduating students with their friends, teachers, and administration over the course time in their program. The celebration that followed was catered by Considerate Catering comprised of students from our STARS (Students Transitioning into Adult Roles in Society) program at the Hamilton Career Center. The food and drink was delicious and made the celebration extra special. Hats off to our special education teachers, support staff, service learning students, parents, and administration for making yesterday an unforgettable day.

A Visit to Hamilton Career Center

2010-05-12T04:34:00.000-07:00

Last week I was able to observe in our Transition to the Real World (TRW) class at Hamilton Career Center. When I entered the classroom all students were at computers working on an assignment that required them to find information about state agencies that provide services to individuals in our community. The teacher monitored individual progress and provided guiding questions to help students understand the importance of knowing where to go to get assistance. Afterwards, we took a short walk to the newly renovated Home Center located on the HCC campus. The purpose of this facility is to provide learning experiences to our 18-21 year old students with disabilities to help them become independent and contributing members of their local community. They are learning basic housekeeping, maintaining a house structure, demonstrating safety in using home appliances, maintaining a garden and shrubbery, and identifying mechanical and electrical elements of a home such as an HVAC system and breaker box. The teacher of this program received a grant to finacially support his vision for enabling our students to achieve competitive employment, improving their social skills, improving daily living skills, and enabling students to access appropriate community agencies. This program is further evidence that leadership is present throughout our district as teachers take the initiative to make things happen.

A Visit to James M Brown's Preschool Intervention Class

2010-05-11T04:21:00.000-07:00

I recently visited the PIP class at James M Brown Elementary and couldn't help but smile as I watched several preschoolers participate in an exciting "hands-on" activity using a Smart Board. Before the lesson began, the teacher led the class in movement as they watched a video and sang a "prep" song reminding them of good listening and learning behaviors. Afterwards, every student was provided an opportunity to individually interact with the Smart Board while answering a question of the day. The teacher built on prior knowledge and experiences by having each boy (yes...all boys in this class) remember a recent field trip to a farm. The students were actively involved in the instruction as they voted "Yes" or "No" in response to "Did you eat the strawberries you picked at the farm?" The teacher was enthusiastic and energetic as she provided continuous positive feedback and praise. These preschoolers were having so much fun they likely didn't even realize they were learning very important skills: turn-taking, attending to the teacher, staying in your seat, the concepts of "Yes" and "No", social skills (acknowledging peers), and organizing information (they had to drag symbols to the correct place on the Smart Board screen). I bet coming to school is the best part of the day for many of these little ones.

Pre-planning is a Key Consideration in Manifestation Determination Reviews

2010-05-07T04:35:00.001-07:00

In re: Student with a Disability, 53 IDELR 205 (SEA VA 2009), a due process case, an independent hearing officer concurred with a Virginia district that a student's disruptive behavior was planned and willful; therefore, it was not a result of his ADHD. Based on the student's explaination that he was trying to get attention, in addition to the comments of the teacher who confronted him after the incident, the manifestation determination review team correctly concluded that the student's behavior did not reflect the impulsivity commonly characterized by his disability.

Planning Undermines Impulse Control Argument

2010-05-06T04:16:00.000-07:00

A state due process hearing (San Diego Unified School District, 109 LRP 54649 [SEA CA 08/12/08]) resulted in a decision that a California school district was justified in disciplining a student with a Specific Learning Disability and ADHD just as if he was a student without a disability. During a manifestation determination review, the IEP correctly concluded that the student's drug distribution did not have a direct and substantial relationship to the student's disability. Investigation into the incident revealed that his actions were not conducted on the spur of the moment but involved planning. Administrators are advised to conduct thorough investigations of behavior incidents so they can bring the information to manifestation determination hearings for the purpose of guiding decisions.

Middle School Student's Misconduct Determined Unrelated to ADD

2010-05-05T04:23:00.000-07:00

In Hollingsworth v. Hackler, 53 IDELR 298 (Texas Court of Appeals 2009), the court reversed the denial of appellants' (principal and assistant principal) motions for summary judgment and rendered judgment that the parents take nothing on their Individuals with Disabilities Education Act claims brought under the Civil Rights Act. In this case the student made an obscene gesture at classmates who were making fun of him. An admission, review, and dismissal (ARD) committee meeting was held and the committee found that the student's behavior was not a manifestation of his attention deficit disorder. According to the case summary, a dispute ensued and the parents sued. The principal and assistant principal challenged the denial of their summary judgment motion under as to the parents' claim. On appeal, the court reversed and rendered judgment that the parents take nothing on this claim. The parents were members of the ARD committee that conducted the manifestation determination review of the student's behavior. The parents did not show that the disciplinary procedures applicable to children without disabilities required parental involvement in the school's disciplinary decisions, for purposes of 20 U.S.C.S. § 1415(k)(5)(A). There was no evidence that the district violated the student's rights under the Act by placing him in a disciplinary alternative education program for 45 days without referring the disciplinary decision to the ARD committee. Thus, principal and assistant principal were immune from individual liability to the parents for civil damages.

IDEA Does Not Require Students to be Classified by Their Disability

2010-05-04T04:14:00.000-07:00

In Pohorecki v. Anthony Wayne Local School District, 53 IDELR 22 (N.D. Ohio 2009), a court determined that the IDEA does not require children to be classified by their disability type. It does require that a child identified as needing special education and related services be regarded as a child with a disability and that a free and appropriate public education be provided. The label or disability category assigned merely guides IEP teams as they develop an appropriate education plan. There was sufficient evidence in this case that the student met the IDEA's definition of ED and that classification was appropriate.

Disability Harassment/Retaliation

2010-04-30T04:34:00.000-07:00

In Wilbourne V. Forsyth County School District (11th Circuit, 2009), a case was dismissed that involved a teacher who argued that a school district retaliated against her by issuing a "letter of directive" to be placed in her personnel file. The district also filed a complaint against the teacher with the Professional Standards Commission (PSC) for "unprofessional conduct" after she filed a complaint with the PSC regarding an incident involving a teacher abusing her disabled son and then confonting an administrator at her son's school about the school's projected discipline of her son. To establish a case of ADA retaliation, a plaintiff must show three things: (1) that the teacher engaged in a statutorily protected activity; (2) that she suffered an adverse employment action; and (3) a causal link between the protected activity and the adverse action. Once a plaintiff has established a case of retaliation, the employer has an opportunity to present a legitimate, non-retaliatory reason for the challenged employment action. If this is accomplished, the plaintiff then bears the burden of showing that the reason provided by the employer is a pretext for prohibited, retaliatory conduct. Here, the teacher presented insufficient evidence to establish that the district's reasons for taking adverse action against her were pretext for discrimination.

Lewellyn v. Sarasota County School Board, 53 IDELR 288 (M.D. Florida 2009)

2010-04-21T04:25:00.000-07:00

In this case, parents claimed the school district disciplined their two sons with disabilities unfairly when it revoked a school choice privilege for one boy (attending a school outside their attendance area) and offered the other deferred expulsion and a behavior contract. The Section 504 and ADA claim filed was discontinued as the District Court determined the district did not discriminate based on disability. The manifestation determination review revealed the boys' behavior was not related to their disabilities which allowed school officials to wage the district discipline policy as it would for students without disabilities. The change in schools back to the one boy's home attendance area does not constitute a change in placement as the Office of Special Education Programs (OSEP) has written that transferring a student to another school does not constitute a change in placement unless it substantially or materially alters his educational program (Letter to Fisher, 21, IDELR 992 (OSEP 1994).

Revoking Consent for Special Education Services

2010-04-20T04:22:00.000-07:00

According to 34 CFR 300.300(b)(4), parents may revoke consent for special education services in entirety. However, they not are able to unilaterally revoke consent for specific, individual services unless state law permits such (South Carolina does not). If parents request to remove a particular service from the IEP, the case manager needs to convene the IEP team to allow the parents to share their concerns and to review whether the service is still needed. The team may determine there is a way to meet the student's need differently (other than by direct services) if the child continutes to need the service in the area for which the parent desires to revoke consent. For example, rather than removing speech therapy services in entirety, the team may agree that consultative services with the regular education teacher may be appropriate. If the team strongly believes the services the parents want removed are necessary, make sure the parents are given a copy of the procedural safeguards in the event they want to dispute the provision of a service. Finally, if the team agrees the service is no longer needed based on documentation of progress, provide the parents with Prior Written Notice before ending the service then hold a special review meeting to make the the change in the IEP.

NAEP Results Indicate Progress for Students with Disabilities is Little to None

2010-04-16T04:25:00.000-07:00

Although more students with disabilities are participating in the National Assessment of Educational Progressn(NAEP), results indicate the gap between students with and without disabilites is not closing much. In 2007, 34% of 4th grade students with disabilities were excluded from testing versus only 28% in 2009. These figures are the same for 8th graders. While more students with disabilites are being allowed to take the NAEP, the average score for students with disabilities continues to be a concern. The average reading score for 4th grade students with disabilites in 2007 was 190 while in 2009 it dropped one point to 189 (on a scale of 500). The 8th grade results were a bit better, but not much. In 2009 the average reading score for 8th graders with disabilities was 229, up from 226 in 2007. Likewise, the gap between students with and without disabilities continues to be large. In 2009, students with disabilites, on average, scored 34 points lower than their non-disabled counterparts. In 2007 the gap was 33 points. The difference between scores for 8th graders was a little better. In 2007, on average, the gap between students with and without disabilites was 38 or 39 points. In 2009 it was 37. These results indicate that we must continue to work hard to learn and implement more effective strategies to help improve educational outcomes for students with disabilities.

Writing Goals and Objectives for Students with Severe Disabilities

2010-04-15T04:17:00.000-07:00

Writing IEP goals and/or objectives can be difficult for students with severe disabilities as progress is typically very slow. In this sitation, it is important for the team to consider goals with the purpose of improving a child's functional skills and to help the student learn to become as independent as possible. Task analysis and considering what the student is able to do is essential. However, it may also be appropropriate for some students with significant cognitive impairments to have academic goals. If a teacher writes an academic goal it should be for the purpose of improving academic functioning. For example, a student may have a goal to identify numbers 1-5 with the purpose of knowing what "2" means when asked to give you two of something. The IEP should clarify what the student should be able to do with the skill. Parents and other members of the IEP team also need to work together to set realistic goals. It may be helpful to look at skills that are measured in South Carolina's Alternate Assessments. These are aligned to our state standards and may be a good reference for developing goals for students with significant cognitive impairments. The IEP should reflect how the team has developed goals that allow for steady (although likely slow) progress over time.

FERPA Allows Districts to Release Contact Information Under Certain Conditions

2010-04-13T05:14:00.000-07:00

In Disability Law Center of Alaska, Inc. V. Anchorage School District, 53 IDELR 2, 581 F.3d 936 (9th Circuit 2009), the court determined that FERPA and the provisions of the IDEA regarding confidentiality do not bar a Protection and Advocacy (P & A) agency from obtaining from school officials contact information for the parents/guardians of diabled students when the P & A agency has probable cause to believe students are being abused or neglected. According to Court records, "The agencies stated that 'if a school or other facility could refuse to provide the name and contact information, it could interfere substanially with a [protection and advocacy agency's ] investigation of abuse or neglect, thereby thwarting Congress' intent that [protection and advocacy agencies] act to protect vulnerable populations from abuse or neglect.'" Although FERPA prohibits releasing personally identifiable information without parental consent or court order, the U.S. Department of Education and the U.S. Department of Health and Human Services have interpreted the Developmental Disabilities Act as creating a limited exception to FERPA.

Protection and Advocacy Did Not Have Probable Cause To Suspect Abuse and Neglect

2010-04-13T04:39:00.000-07:00

In Disability Law Center v. Discovery Academy, 53 IDELR 282 (D. Utah 2010), the court concluded a Protection and Advocacy agency was not entitled to access to student records at a therapeutic boarding school as the agency did not produce any factual evidence that the school used inappropriate seclusion and restraint techniques. The P & A agency claimed there was probable cause to believe neglect had occured and argued that it had sole authority under P & A for Individuals with Mental Illness Act (PAMI) to decide whether there is probable cause to investigate. This argument was rejected as the agency would be able to conduct what was effectively a "warrantless search and seizure" of the school's records--a practice that would raise serious constitutional concerns. Court records state "The [agency] fails to provide any factual support for what the allegations were, who made the allegations, what the substance of the complaint was, or the name of the supposed victims of the abuse."

Teacher's Use of Seclusion and Restraint Does Not Violate Student's Constitutional Rights

2010-04-11T17:31:00.000-07:00

In C.N. v. Willmar Public Schools, 53 IDELR 251, 591 F.3d 624 (8th Circuit 2010), the parent of a third grade student identified with a disability under IDEA reenrolled her daughter in another district after learning her daughter was subjected to physical and verbal abuse by a special education teacher. After transferring, the student's mother sought to challenge the adequacy of the former district's educational services. The subsequent challenges to the student's previous education became moot because according to the U.S. Court of Appeals for the Eighth Circuit in Thompson, if a student changes school districts and does not request a due process hearing, his or her right to challenge prior educational services is not preserved. Rather, the new school district is responsible for providing a due process hearing. The Section 504 claim was properly dismissed for the same reason. As for plaintiff's Section 1983 claims, there was no Fourth Amendment violation since the special education teacher's use of restraints and seclusion was authorized by the student's individualized education program. Her behavior intervention plan allowed her teacher to use seclusion and restraint as behavior managment techniques.

Calling Police Does Not Violate Student's Constitutional Rights

2010-04-01T02:05:00.000-07:00

In B.L. Boyertown Area School District, 52 IDELR 42 (E.D. Pennsylvania 2009), a court granted a school district's and principal's motion to dismiss action for damages under Section 1983, 504, and the ADA. Where the student's Behavior Intervention Plan provided that the Principal had broad discretion when the student hurt or threatened others or used profanity, the principal's action of calling the Pennsylvania State Police was within the provisions of the BIP when the student used profanity towards his one-to-one aide. Telephoning the police to deal with the child does not constitutute a clear violation of the child's consitutional rights and it was reasonable for the principal to assume that this action was in compliance with the law.

Money Damages Sought Under IDEA

2010-03-29T01:48:00.000-07:00

In Blanchard v. Morton School District., 52 IDELR 3 (W.D. Washington 2009), a prior decision that a district made a free and appropriate education available to a student with autism and other severe limitations was affirmed. Additionally, claims under the ADA and 504 require a showing of deliberate indifference and the plaintiff must establish the following: (1) the defendants had knowledge from which an inference could be drawn that harm to a federally protected right is substantially likely, and (2) the defendant actually draws that inference and fails to act upon the likelihood. There was no evidence in this case that remotely reached a level of deliberate indifference and there was no evidence that even reached a level of negligence.

Compensatory Damages Are Not Available Under IDEA

2010-03-26T02:11:00.000-07:00

In Doe v. Westerville City School District, 51 IDELR 245 (S.D. Ohio 2009), the plaintiffs initiated a case alleging that for the school year commencing in 2002-2003 through and including the 2006-2007 school year, Defendants violated the IDEIA by failing to provide a FAPE for John Doe, Jr. and by failing to create and follow an IEP that provided instruction premised on scientifically based reading research in violation of NCLB. The Plaintiff requested a jury trial and sought both equitable relief and compensation damages. The U.S. District Court determined the Plaintiffs were limited to the remedies available under the IDEA for violations of the law (e.g. funds to reimburse parents for expenses on special education that a school board should have, but did not provide) and could not seek compensatory damages, including damages for emotional injuries. There was no right to a jury trial in a case alleging IDEA violations and there was no private right of action under the NCLB Act.

A Visit to Northside Elementary

2010-03-17T05:20:00.000-07:00

Happy St. Patrick's Day! This week I was able to visit two special education classrooms at Northside Elementary. In the first classroom an urgency for learning was present as all students were on task working independently or with an aide. The teacher worked with two students simultaneously addressing each one's unique needs. She provided just enough scaffolding to lead her students to the correct answers and instructed with patience and a genuine concern for each students' learning. Effective teaching practices observed included relating learning to real-world experiences, visuals, and manipulatives. Some students experienced technology throughout the lesson. In the second classroom the teacher reviewed good body-listening skills before beginning a lesson with a group of students. She managed to target several learning objectives (e.g., auditory comprehension, counting, shapes, turn-taking, and answering "wh" questions) while engaging the students in a fun game activity. Pragmatic language skills were addressed as the students used laminated photographs of themselves cut into paper dolls to practice communication. The preschoolers loved this activity. The atmosphere in both classrooms was very positive and it was evident both teachers had spent time planning activities to meet each students' individual needs.

A Visit to Tamassee-Salem Elementary

2010-03-16T01:56:00.000-07:00

Yesterday I was able to observe a speech-language lesson at Tamassee-Salem Elementary. The speech room was well organized and visually appealing. The students entered the room excited and knew they were in for a fun lesson. The speech teacher had her materials ready and started by asking each student "What are you working on today". After each response the teacher reminded the student how to articulate their target sounds correctly and provided a model for correct production. The students took turns practicing their sounds while randomly drawing letters to try to spell the word "Clover" for St. Patrick's Day. The group had a lot of fun and I laughed out loud several times. This teacher made speech time engaging and enjoyable!

Students With Disabilities Must Benefit From Public School Special Services

2010-03-15T02:04:00.000-07:00

In Cone ex rel. Cone v. Randolph County Schools Board of Education, 53 IDELR 113 (M. D. N. C. 2009), the U.S. District Court, Middle District of North Carolina, determined that a district did not provide appropriate services to meet the education needs of a high school student with Fragile X syndrome and Autism. While the court did not indicate the student required a residential placement, it did note that the IEP did not provide a plan for transitions throughout the school day, consistent instruction in all environments, or a plan for communication between school and the student's home. U. S. District Judge Thomas D. Schroeder wrote "[The district's expert] also agreed that more consistency in the information and techniques used with [the student] is beneficial to those with his condition." IEPs teams must be mindful of each student's individual needs when developing educational plans to confer educational benefit.

Fifth Grader With Emotional Disturbance Receives FAPE

2010-03-12T02:02:00.000-08:00

In L.F. by Ruffin v. Houston Independent School District, 53 IDELR 116 (S. D. Texas 2009), the court concluded a school district met FAPE requirements when it placed a fifth grade girl with an emotional disturbance in a self-contained program designed to address behavior, academics, and social skills. The placement was determined to be the least restrictive environment as the student was mainstreamed for study hall and physical education. Although the parent charged the district with procedural violations, paperwork indicated the parent was informed of the placement and received appropriate and timely notification of IEP meetings. Cypress-Fairbanks Independent School District v. Michael F., 26 IDELR 303 (5th Circuit 1997) outlined 4 prongs used to determine whether or not a special education program is appropriate: (1) addresses student's individual needs; (2) is administered in the LRE; (3) is implemented in a coordinated and collaborative manner by key stakeholders; and (4) allows the student to obtain academic and nonacademic benefits. The district met all four elements in this case and the court rejected the parent's substantive claim as well.

IEPs Should Indicate Services Being Provided to Students

2010-03-11T01:58:00.000-08:00

In J.P. and R.P. v. Enid Public Schools., 53 IDELR 112 (W.D. Oklahoma 2009), an administrative decision in a school district's favor was made despite the district's failure to delineate services in a high schooler's IEP. U.S. District Judge Joe Heaton wrote "While [the student's] IEP documents themselves fail to specify every area in which [the student] was in need of special services, the IEPs in practice provided him with an array of special education servives personalized to his own neeeds and calculated to provide him an educational benefit." The IEPs did not spell out how services to address organizational, transition and academic services were going to be provided; however, special education instruction included showing the student how to outline chapters, use a daily planner, breaking tasks in smaller units, how to use indexes and glossaries, interviewing skills, and how to fill out applications for employment. Although the court ruled in favor of the district, case managers of IEPs should not take chances. Special education services required to address student needs should be delineated in IEPs.

Parents Need to Exhaust Administrative Remedies Under IDEA Before Making Discrimination Claims

2010-03-10T01:34:00.000-08:00

In C. B. v. Sonora School District, 53 IDELR 115 (E. D. California 2009), the parents of a sixth grader with mood disorder filed a claim for disability discrimination after a school employee called police when the student "shut down". The police handcuffed the student then took him to a relative's home. The parents claimed discrimination and charged school personnel with not following the behavior intervention plan which outlined specific interventions to try when the student "shut down". The U. S. District Court (Eastern District in California), held that administrative remedies under IDEA must be exhausted before seeking relief under a Section 504 claim and Title II. Since the parents claimed the BIP was not being followed, the U. S. District Court does not have jurisdiction until administrative remedies under IDEA have been exhausted.

Statute of Limitations and Section 504

2010-03-08T01:56:00.000-08:00

Since Section 504 does not have its own statute of limitations, courts can use statutes of limitations from closely related state laws or even a federal law if the federal law is more analagous to the law under consideration. In P. P. by Michael P. and Rita P. v. West Chester Area School District, 53 IDELR 109 (3d Circuit 2009), the 3d U.S. Circuit Court reversed the District Court's decision which applied Pennsylvania's two-year statute of limitations for personal injury claims (50 IDELR 133) and determined that Section 504 is more closely related to IDEA 2004 which also has a two-year statute of limitations. However, it is important to note that the limitations period is not applicable if a school district does not provide required information to parents or if they falsely misrepresent the issue as being resolved.

Students With Disabilities Transfering Within the Same State

2010-03-05T02:08:00.000-08:00

The IDEA (34 CFR 300.323 (e)) states that districts must provide comparable services to students with disabilities transferring between districts in the same state and within the same academic year when an IEP was in effect in the prior district. In Clovis Unified School District, 52 IDELR 236 (SEA CA 2009), a student with autism transferred from one school district to another over the summer in California. Although the receiving district was not required to offer comparable services since the student transferred between school years, it was determined the receiving district denied FAPE because it failed to provide adequate services to address deficits in reading and writing. When a school receives an IEP from another district it is imperative to review the most recent academic records, psychoeducational report, IEP, and progress reports. Input from parents and former teachers is also valuable.

Does a District Owe Compensatory Speech-Language Due to Shortage of SLPs?

2010-03-01T01:47:00.000-08:00

In M.L. ex rel. A.L. v. El Paso Independent School District, 52 IDELR 159 (W.D. Texas 2009), a 12-year-old with a speech-language impairment had an IEP calling for 60 minutes of speech-language services a week. Unfortunately, the districts experienced a shortage of Speech-Language Pathologists (SLPs) and since they were unable to fulfill the IEP the district contacted the parents to inform them compensatory services would be considered. Although the student missed at least 19 hours of therapy, the IEP team determined the student was no longer eligible for speech-language services. The parents filed a due process complaint requesting compensatory services but their request was denied since their child was no longer a child with a speech-language impairment. U.S. District Judge Kathleen Cardone wrote, "Ultimately, providing additional compensatory speech therapy services for [the student] when [he] has no speech disability would only serve as a form of damages, a remedy that is not appropriate under the IDEA."

Name of School Child Was Supposed to Attend was Not Specified in IEP

2010-02-26T02:04:00.000-08:00

In Davidson County Schools, 53 IDELR 240 (OCRXI, D. C. (NC) 2009), the Office of Civil Rights determined a North Carolina school district was out of compliance when it failed to provide transportation to a student with a disability despite the service being specied in the student's IEP. At the last IEP meeting for this student, the district recommended placement at the most appropriate school closest to the child's residence. Although the parent disagreed, she signed the IEP but enrolled her child in the school she preferred then provided transportation for two months until her car broke down. She filed an OCR complaint and was awarded compensation for the cost of transporting her child 500 miles. The district explained the failure to provide transportation was due to a miscommunication; however, the OCR still found in favor of the parent since the IEP did not specify which school the child would attend.

Stay-Put

2010-02-25T01:59:00.000-08:00

In W.R. and K.R. exrel. H.R. v. Union Beach Board of Education, 53 IDELR 234 (D.N.J. 2009), the U.S. District Court in the District of New Jersey determined parents of a 10-year old with multiple disabilities could not invoke the IDEA's stay-put provision. Although his parents preferred one-on-one instruction in the area of language arts, the district changed his service from this model to small group instruction with two other students. An administrative law judge later ordered the district to return to the one-on-one model and the parents requested stay-put when the district sought a reversal of the decision. The court determined stay-put could not be invoked since no fundamental change in placement took place and the student's IEP and classes were for the most part similar.

Searching Students With Disabilities on a Daily Basis is Unconstitutional

2010-02-24T02:08:00.000-08:00

In Hough by Abbott v. Shakopee Public Schools, 53 IDELR 232 (D. Minnesota 2009), the U.S. District Court found that requiring daily searches of backpacks and clothing (and sometimes pat-downs) at a school for students with disabilities violated the 4th amendment rights of those students. Although some students had carried items on campus that were forbidden according to district policy, searching all students on a daily basis was determined excessive and unreasonable. The court noted that the U.S. Supreme Court has permitted limited searches of students who want to participate in extracurricular activities, (e.g., athletes); however, U.S. District Judge Patrick J. Schlitz wrote, "No student is entitled under law to play football or sing in the choir, but every [student with a disability] is entitled under the law to special education services."

District Did Not Schedule IEP Meeting at Mutually Agreed Upon Time

2010-02-19T01:59:00.000-08:00

In Drobnicki by Drobnicki v. Poway Unified School District, 53 IDELR 210 (9th Circuit 2009), the school district drafted an IEP without parent input then scheduled an IEP meeting without consulting the parents to see if the time was good for them. When the district learned the parents could not attend at that time, rather than rescheduling, the district offered parental participation by speakerphone. The 9th Circuit Court claimed the school district did not fulfill their affirmative duty to schedule the IEP meeting at a mutually agreed upon time and place and further clarified that parental participation by phone conference is an option only if neither parent can attend the IEP meeting. This district's procedural violation ultimately denied the student FAPE.

District Develops IEP Despite Parents' Concerns

2010-02-18T02:04:00.000-08:00

In Winkelman v. Parma City School District Board of Education, 53 IDELR 215 (N.D. Ohio 2009), the U.S. District Court for the Northern District of Ohio ruled in favor of the school district against parents' FAPE claims. The court determined the school district made good faith attempts to develop IEPs for a child with autism despite a lack of cooperation from the parents. Records indicate that before the start of the 2004-2005 school year the district made two documented attempts to schedule an IEP meeting; however, the parents did not respond.

A third invitation letter was sent in September of 2004 at which time the parents filed a due process complaint claiming the district failed to have an IEP in place at the start of the school year. Although the district offered an IEP for the parents to review, the parents declined to read the IEP and stated they would homeschool that year. The following school year, the parents attended a meeting to develop an IEP for the 2005-2006 school year; however, when they learned their child did not qualify for Ohio's autism scholarship program they left the meeting. The district erred in assuming the parents declined the IEP and failed to verify the student would not be attending school that year. The parents enrolled their child in a private school for children with autism when the bus did not show up at their house the first day of school. U.S. District Judge Donald C. Nugent wrote, "The court finds it important to emphasize the great pains [the district] went through to comply with the complex laws that govern [IDEA] issues, expending a great deal of time and effort while experiencing continued difficulties with the cooperation of [the parents]."

Determining Compensatory Service Hours

2010-02-17T02:24:00.000-08:00

In Reid v. District of Columbia, 43 IDELR 32 (D.C. Cir 2005), the court determined it is inappropriate to calculate the amount of compensatory special education services a student is entitled to by adding up hour for hour the amount of time services were missed. Rather, IEP teams must determine compensatory service plans based on students' individual needs. In Mary McLeod Bethune Day Academy Public Charter School v. Bland, 50 IDELR 134 (D.D.C. 2008), past psychoeducational evaluations (conducted in 2002 and 2005) revealed the student did not make educational gains over a 3 year period. A formula was used to approximate the amount of progress the student should have made over 3 years time based on educational capability. The court agreed that the proposed 3,300 hours of tutoring would compensate for the estimated loss of 1.5 years of educational progress the student should have made and would make up for the charter school's denial of FAPE.

Teams Must Consider Relevant Information When Conducting a Manifestation Determination Review

2010-02-16T02:05:00.000-08:00

In re: Student with a Disability, 52 IDELR 239 (SEA WV 209), an independent hearing officer concluded a school district violated IDEA when conducting a manifestation determination review for a 13-year-old with ADHD and ODD who took a pill given to him by another student. The manifestation determination team failed to discuss pertinent information during their review including medications the student was taking or how the behavior was linked to the student's disability. Furthermore, the student shared he felt pressured to take the pill that was offered by a larger student. Another error on the part of the district was failing to include the school psychologist who completed the student's initial educational evaluation. IEP teams must be mindful to conduct thorough MDRs and to discuss all relevant information including the student's IEP, discipline reports, teacher observations, and parental input in an attempt to understand the function of the student's behavior.

Districts Are Not Obligated to Adhere to Indepentent Evaluators' Recommendations

2010-02-10T01:53:00.000-08:00

In Shakopee Independent School District, 52 IDELR 210 (SEA MN 2009), parents of a 17-year-old student with dyslexia sought recommendations from two independent evaluators regarding appropriate methodology for reading instruction. Although both evaluators recommended a multisensory, systematic direct instruction approach (e.g. Orton Gillingham), the district offered to provide a program with goals focusing on reading and written expression and resource services in the form of direct instruction with modifications for reading and writing. While it was determined the district was not at fault for failing to adhere to the recommendations of the independent educational evaluators under IDEA, the district did err in not notifying the parents of its decision. Communication within the IEP team is imperative and ultimately results in best outcomes for students with disabilities.

Disability Harassment

2010-02-09T01:55:00.000-08:00

In Sheridan County (CO) School District Number 2, No. 08-07-1188, 108 LRP 53143 (OCR 05/13/08), the Office of Civil Rights determined a district was not under obligation to respond to parental complaints of harassment toward a boy with autism for name-calling. The parent notified the teacher but felt her concerns were not addressed so she then went to other school officials including the assistant superintendent. After investigating, school staff informed the parent the issue had been resolved. Not satisfied, the parent filed an OCR complaint. OCR noted that the parent did not allege disability-based harassment due to his autism. If this would have been the case, the school district would have been obligated to respond by taking prompt and effective action to stop the harassment, remedy the effects of the harassment, and prevent its reoccurence.

Disability Harassment

2010-02-08T02:03:00.000-08:00

Reports of harassment based on disability are very serious and school officials must investigate such reports promptly and thoroughly. In Westfield (MA) Public Schools, 53 IDELR 132 (OCR 2009), the Office of Civil Rights found that school administrators were irresponsible in three ways after receiving a report of possible disability harassment. First, although an investigation was inititated, administration did not seek statements from other students or teachers who may have observed the incident. Second, the allegations were not documented. And third, the parents of the student allegedly being harassed based on disability were never notified about the results of the investigation. Public school administrators must prompty investigate harassment charges related to a student's disabililty whenever there is suspicion of such activity.

Forest Grove...The Saga Continues

2010-02-05T02:03:00.000-08:00

In Forest Grove School District v. T.A., 52 IDELR 151 (U.S. 2009) the Supreme Court ruled that parents could be reimbursed for unilateral placements even when their children have never received special education services in a public school setting. After the ruling, this case was sent to the District Court where U.S. District Judge Michael Mosman rejected the reimbursement request. It appears the parents enrolled their son in Mount Bachelor Academy due to his drug abuse and aberrant behavior and not necessarily for academic purposes. So, the decision ultimately boils down to the intention of the placement...is it educational or medical? The parents of T.A. are appealing this decision.

Guidelines for the Use of Seclusion and Restraint of Students with Disabilties is in Draft Phase

2010-02-04T01:55:00.000-08:00

In a letter dated July 31, 2009, to Chief State School Officers, Secretary of Education Arne Duncan wrote "I urge each of you to develop or review and, if appropriate, revise your State policies and guidelines to ensure that every student in every school under your jurisdiction is safe and protected from being unnecessarily or inappropriately restrained or secluded." In response to this request, a team consisting of various agency personnel throughout South Carolina was formed by the SCDE for the purpose of drafting guidelines on the use of seclusion and restraint. I am fortunate to be one of the draft reviewers and therefore received a copy of the work in progress this week with charge to respond by tomorrow. I read the proposed draft and highlighted actions our district would need to take to ensure adherence to the guidelines. All in all, I believe the team developed a thorough document defining several terms (e.g., seclusion, physical restraint, escorting, mechanical restraints). I am very pleased that the document opens with a description of School-wide Positive Behavior Interventions and Supports and how this system has the potential to reduce behavioral incidents that might escalate to Tier III. I am confident the finalized guidelines will provide a blanket of protection for students and school administrators dealing with crisis behavior.

A Visit to Wilderness Way Camp School For Girls

2010-02-03T01:41:00.000-08:00

Monday morning I visited the Wilderness Way Camp School for Girls to do a walk-through observation of our special education services. It was a crisp, damp morning and felt so good to be out of my office and enjoying the beauty of Oconee County. The camp director escorted me through several trails down to one of two camp sites. I am thankful I had a guide and checked to make sure someone was going to be able to help me find my way back when my observation was over. I met the teacher and a student she was working one-on-one with then followed them to the tent that was used for their school house and other gatherings. I guessed the large circular table in the middle of the tent with long benches spaced all around fostered communication during group time. The teacher was instructing the student how to do order of operations when confronted with long, complicated equations. She taught her the mnemonic device "Please excuse my dear aunt sally" to help the student remember what to do first then next. As the student worked her way through the problem the teacher had her think out loud. This helped the teacher identify where the breakdown in comprehension took place. As I observed I thought about how some people are just born to teach. This teacher fits that bill. She used a caring yet confident tone of voice demonstrating mastery over the content she was presenting. It was obvious the student wanted to work hard for her teacher and not let her down. I thoroughly enjoyed my observation and look forward to returning to the camp for another visit.

A Visit to Tamassee-Salem Elementary

2010-02-01T06:08:00.000-08:00

I really miss working with students. Every now and then I'll dream that I'm teaching a group children and vividly remember how sweet it is. I thoroughly enjoy getting into our special education classrooms and observing instruction. It reminds me of my first love...teaching. On Friday afternoon I was able to visit Tamassee-Salem Elementary and observe a resource class. The students and teacher were reviewing vocabulary words on a Smartboard from a recently read book titled Superfudge by Judy Blume. The teacher offered the students a choice to either make a sentence or provide a definition. Every now and then a student would need prompting..."Do you remember how the word was used in Superfudge?" The teacher was very kind and respectful toward her students when the target word was used incorrectly. She provided a definition then used the word in another situation relating the learning to a real-world experience. The teacher tapped into the Knowledge Dimension of Meta-Cognitive Knowledge in Bloom's revised taxonomy as she asked her students to evaluate their own knowledge level of the vocabulary words being studied. Having an understanding of the English language is essential to adademic progress across subject areas. Likewise, having an understanding of vocabulary is the key to unlocking the joy of reading. It was a delight to observe a thoughtful and effective teacher helping her students move past the barriers of unknown vocabulary so they could understand the literary elements of Superfudge. Great lesson!

Revocation of Consent for Special Education and Section 504

2010-01-29T04:43:00.000-08:00

To date, the Department of Education's Office of Civil Rights and and OSEP have not provided much guidance on how to handle the situation whereby parents have revoked consent for special education but are seeking accommodations through a Section 504 Plan. Under IDEA, when a parent revokes consent for special education the student no longer has a safety net when it comes to disciplinary procedures. A question then comes into play when they ask for the same disciplinary protections under Section 504. Since this is an unresolved legal issue, the School District of Oconee County will consider 504 eligibility on a case-by-case basis. It is expected that in most situations the 504 Plan would look very similar to the IDEA accommodations the parents declined.

Stating the Location of Services in an IEP

2010-01-28T07:47:00.000-08:00

In T.Y. v. New York City Department of Education, 584 F. 3d 412 (2nd Circuit 2009), the parents of a student with autism sought tuition reimbursement for private school placement claiming several IDEA violations. One major violation they asserted was how the district failed to specify in the IEP which school their child would attend. District policy stated that a citywide placement offer was responsible for identifying a school capable of providing the most appropriate services. This typically took place after the IEP meeting was held. In this particular case, once the parents learned which school their child was supposed to attend they vistited the school then objected to the placement. The district offered another school but the parents rejected it without visiting then later enrolled their child in a school for autistic students and requested reimbursement. They claimed that the district committed a procedural violation by not adhering to 20 U.S.C. Section 1414(d)(1)(A) of the IDEA which indicates an IEP must include the "anticipated frequency, location, and duration of those services." In this case, the U.S. Court of Appeals, Second Circuit, noted "the term 'location' does not mean the specific school location, but the general environment of the overall program." Hence, there was no procedural violation of IDEA.

Should a Similar IEP Be Put In Place When a Student Is Retained?

2010-01-28T02:02:00.000-08:00

For the majority of students with disabilities, the goals (and objectives if applicable) of an IEP should be written to target curriculum-based measures. The purpose is to provide access to the general curriculum. Furthermore, LEAs have been warned about the importance of writing IEPs that change over time as IEPs that are similar from year to year indicate a lack of progress. However, if a student repeats a grade it would substantiate having a very similar IEP with regard to goals as the student would be working on the same curriculum two years in a row. The important thing for teams to consider in this case is the documentation of progress from the previous year. If the student mastered some of the goals and objectives, they need to be replaced by ones that are more rigorous. However, if there are goals that were not mastered it would make sense to target them the following year if they were written based on a curriculum the student will be exposed to again.

Federal Court Rejects Parent's Request for Tuition Reimbursement

2010-01-27T01:59:00.000-08:00

In LATHROP R-II SCHOOL DISTRICT, vs. WILLIAM GRAY, by and on behalf of his son
(Case No. 08-6040-CV-SJ-GAF
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI, ST. JOSEPH DIVISION), the parents of a student with autism were unable to obtain reimbursement for private tuition. Although the first panel found the student's IEPs were deficient due to a lack of baseline data in the development of goals and also stated the district failed to adequately address behavior, a federal district court reversed a lower court's ruling and determined reimbursement was not warranted. As soon as the district learned the student with autism was going to be transferring to their school it enrolled staff members in an autism training program and hired an occupational therapist who had prior experience working with children with autism. After enrollment, the district hired an autism consultant to conduct a functional behavioral assessment and make recommendations while staff members initiated strategies to address the student's behaviors. Over time, the student made progress in the area of speech and language mastering many goals and the team amended his IEP to include a special diet designed to decrease improper sexual and non-sexual behaviors. Furthermore, positive behavioral support strategies were utilized. Although the IEPs did lack starting-point data, the federal district court pointed out that the IDEA requires only "a statement of the present levels of educational performance" and "measurable annual goals and objectives".

Disability Services for Students in Postsecondary Settings

2010-01-22T02:15:00.001-08:00

Yesterday Carol Miller (TriCounty Technical College) and Dr. Arlene Stewart (Clemson University) presented a workshop at Hamilton Career Center focusing on how to successfully transition students with disabilities to college life. Both stressed the importance of teaching self-advocacy skills in the K-12 setting and explained that disability services can vary significantly from one campus to another. One of the main differences between high school and college pointed out by Ms. Miller is that students are responsible for the management of their accommodations. Students arrange appointments with the Office of Disability Services...not parents. Furthermore, it is the student's responsibility to take Faculty Notification Forms to instructors and to initiate communication with faculty if there are problems. Accommodations must be requested by the student and once in place they must be requested for every test, in every class, at least a week in advance. Dr. Stewart shared that the three most important steps for a successful transition include educational planning, student participation in decision-making, and the development of self-advocacy skills. At Clemson University, typical in-class services for students with documented disabilities include extended time, low distraction space for testing, note takers/recording devices for lectures, use of a calculator/computer, and spelling/grammar consideration.

Another point that was made very clear is that just because an accommodation had been granted in high school, it may/may not be appropriate in college.

Assisting 504 Students Transition to Postsecondary Educational Settings

2010-01-20T16:47:00.001-08:00

In Volume 25, Issue 11 of the Special Educator (December 4, 2009), school attorney Dave Richards with Richards, Lindsay and Martin in Austin, Texas offer guidance to districts on how to facilitate postsecondary transition for students served under a 504 plan. He stresses the importance of explaining to students that there are distinct differences between 504 services in the K-12 setting and in college settings. In postsecondary settings, students with disabilities are responsible for making college staff aware of their disabilities and accommodations. It is also the student's responsibility to provide requested documentation verifying the existence of a disabling condition and it must be provided at the student's expense. Furthermore, colleges are afforded the opportunity to use "reasonable accommodation" standards which means they can refuse to provide an accommodation if doing so would impose "an undue hardship on the operation of its program or activity."
Students with disabilities also need to be aware that the Section 504 regulation at 34 CFR 104.37(b) prohibits counselors from counseling students with disabilities to "more restrictive career objectives than nondisabled students with similar interests and abilities." Finally, districts can help students with disabilities transition more successfully by fostering self-advocacy skills. They should be encouraged to participate in or even lead their own 504 team meetings and they need to be able to communicate their accommodation needs clearly.

Reexamine 504 Plans When Problem Behaviors Escalate

2010-01-19T16:34:00.000-08:00

In Volume 25, Issue 11 of the Special Educator (December 4, 2009), school districts are advised to reevaluate students' 504 plans when it appears they are not responding to previous discipline measures that have been imposed. Tips for consideration include:
1. Does medication impact behavior? Invite the school nurse or other medical professionals to the section 504 meeting if it is suspected that medication may be impacting behavior.
2. Conduct a Functional Behavior Assessment and develop a Behavior Intervention Plan (BIP) based on the results. Sometimes school personnel other than the classroom teacher are needed to observe and collect data.
3. Review the student's BIP regularly and make changes as needed.
4. Consider whether the behavior in question is a manifestation of the student's disability before the 10-day rule kicks in. Be proactive.
5. Make sure key players are involved in decision-making. If the behavior is taking place more often in a particular setting (PE for example), make sure the teacher or other school personnel most knowledgeable about the behavior are present to provide input at meetings.

IEP Teams Must Develop an Action Plan for the Provision of Services in IEPs

2010-01-19T02:26:00.001-08:00

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. No-No #21 explains how not providing the services outlined in the IEP is the most serious substantive error that an LEA can make. IEP teams are advised to discuss "action plans" when developing IEPs. In the 2006 IDEA regulations, section 300.323 (d) was amended to retain the 1999 regulation section 300.342 (b) which requires public agencies to ensure that each regular teacher, special education teacher, related services provider, and any other service providers who are responsible for the implementation of a student's IEP, is informed of his or her specific responsibilities related to implementing the child's IEP and the specific accommodations, modifications, and supports that must be provided for according to the IEP. At the conclusion of an IEP meeting, it is good practice to summarize the services discussed and "who" is responsible for "what".

IEP Teams Need to Determine Understanding of Right and Wrong During MDRs for Students with ADHD

2010-01-14T01:53:00.000-08:00

In Volume 25, Issue 11 of the Special Educator (December 4, 2009), there is an interesting article providing guidance to IEP teams when conducting manifestation determination reviews (MDRs) for students with ADHD. In two separate cases the school districts determined the students' behavior was not a manifestation of their disabilities. In Reeths-Puffer Schools, 52 IDELR 274 (SEA MI 2009), the administrative law judge (ALJ)ruled in favor of the school district when it determined that a student with ADHD told police he knew it was wrong to bring a knife with a four-inch blade to school and that he did it to protect himself. However, in San Diego Unified School District, 52 IDELR 301 (SEA CA 2009), an ALJ did not agree with the district and believed it was a manifestation of the student's disabling ADHD when the teenager served as the "middle man" when selling marijuana seeds. In this case the student had stopped taking his medication a few weeks earlier due to side effects. The evidence revealed "the impulsivity characteristic of the student's ADHD and his lack of medication led him to join the drug transaction without thinking of the consequences."
IEP teams are advised to consider the following when conducting MDRs:

analyze all student records
conduct interviews and include anyone who might have witnessed the student before or during the particular incident
examine medical and disciplinary history
learn behavioral motivations or goals
determine the student's cognitive awareness of right and wrong
determine if the student knew he/she was violating school policy
determine if any planning was involved and over what period of time the planning process occurred

A Visit to Tamassee-Salem Elementary

2010-01-12T02:24:00.000-08:00

Yesterday I was able to observe in a self-contained classroom at Tamassee-Salem Elementary. I very impressed with the neatness and organization of the classroom. The walls were visually appealing and displayed several educational posters to be utilized by the teacher, instructional aide, and students (e.g., number line from -35 to 180, cursive letters, fractions, diagraphs, writing tips, calendar activites, a pocket schedule for individual students and grade levels, and geometric shapes just to name a few). It was obvious that this was a positive behavior support classroom as a matrix for classroom expectations was posted in addition to a PBIS incentive bulletin board depicting a race car for each student containing incentives earned. Some students were grouped and others worked independently. The teacher followed her schedule and rotated groups and students to accommodate each one's learning objectives and needs. Every student was engaged and on task. The culture of this classroom was characterized by high expectations for learners and an urgency to take advantage of every educational minute. The teacher was effective, conscientious, and displayed genuine care and concern for her students. There was a clear desire for the teacher and her students to strive to achieve a title displayed on a classroom banner....WORLD'S GREATEST CLASSROOM!

LEAs Must Include Measurable Goals in the IEP

2010-01-08T01:38:00.000-08:00

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. No-No #20 explains LEAs should provide training for school staff on how to write appropriate and measurable annual IEP goals as IEPs are often found lacking in this area. This is especially true for states that have opted to eliminate the inclusion of short-term objectives or benchmarks except for those students qualifying for alternate assessment. There have been a few cases whereby courts have determined annual goals were measurable because short-term objectives were included. Furthermore, simply adding "80% of the time" does not make the goal measurable. For example, measuring "Johnny will demonstrate appropriate behavior 80% of the time" would require someone to follow him around the entire school day and record every social act the child engages in to determine if he met his goal. A more specific and measurable goal might be "Johnny will follow all classroom rules not less than 40 school days during the last marking period of his IEP year."

LEAs Must Share All Relevant Evaluative Information with Parents

2010-01-07T01:54:00.001-08:00

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. No-No #19 is failing to share all relevant evaluative information with parents as the failure to do so could be considered a procedural violation and might constitute a denial of a free and public education. At times, LEAs may be hesitant to share all information for fear of upsetting parents; however, all information must be shared to allow the parents to participate as equal and informed members in the development of an IEP. Although parents must be aware of all relevant evaluation data, there is no requirement for the LEA to provide the evaluation report in advance to parents. The US Department of Education commented in the 2006 IDEA that the Act "does not establish a timeline for providing a copy of the evaluation report or the documentation of determination of eligiibity to the parents and we do not believe that a specific timeline should be included in the regulations because this is a matter that is best left to state and local discretion."

Members of IEP or School Personnel Should Not Diagnose Medical Conditions or Suggest Medication Without the Credentials for Doing So

2010-01-06T02:04:00.000-08:00

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. No-No #18 advises school personnel to not make statements like "it's obvious that your child has ADHD, ODD, and OCD. Take him to the doctor so that we can develop a plan for him and he can be put on medication. In fact, here's the card of someone I know who can do that evaluation." Rather than making a diagnosis of a medical condition without being qualified to do so, school personnel should make a proper referral for an evaluation. Furthermore, the 2004 IDEA provides that State Educational Agencies shall prohibit State and school system personnel from requiring parents to obtain a prescription for a medication covered under the Controlled Substance Act as a prequisite before they can bring their child to school, receive an evaluation, or receive services. Teachers and other school personnel are not prohibited from sharing classroom-based observations with parents or guardians regarding a student's academic and functional performance, or behavior in the classroom or school, or the need for an evaluation for special education and related services.

Making Unilateral Changes in Placement Through the Use of Suspension or Other Removal from the Current Placement

2010-01-05T01:53:00.000-08:00

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, LEAs must be mindful when students with disabilities are suspended for over 10 days at a time and for more than 10 days at a time cumulatively in a school year when the pattern of removals constitute a "change in placement". Before changing the educational placement of a student with a disability the following must occur: (1) manifestation determination, (2) IEP team must plan for a functional behavioral assessment then develop a behavioral intervention plan based on the results, and (3) the IEP must determine what services are necessary for the student to participate in the general education setting and to make progress toward his/her IEP goals in the alternative education setting when the student is removed for more than 10 days. Other removals not designated "short-term suspensions" may also count toward the 10 day change in placement. For example, sending a student with a disability home to "cool down" or "home time-out".

IEP Teams Must Address Behavioral Strategies or Interventions as Part of the IEP When Needed

2010-01-04T01:53:00.000-08:00

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 requires that any time a child exhibits behavior that impedes his or her learning or that of others, the IEP Team must consider appropriate strategies, including positive behavioral interventions and supports to address the behavior. Though the IDEA does not require that a behavior management plan be part of or incorporated into the IEP, where it is determined that a child needs a behavior managment plan, its development should be discussed as a support service or intervention at the IEP meeting. School staff should be trained to understand that this is not just an issue for students who are behaviorally or emotionally disabled. Rather, it is one for any student who has behavior that impedes learning."

LEAs Must Consider Independent Evaluative Information Brought in by the Parents

2009-12-18T02:14:00.000-08:00

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

2009-12-17T01:39:00.000-08:00

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

2009-12-16T01:54:00.000-08:00

"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

2009-12-15T01:53:00.000-08:00

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

2009-12-14T02:14:00.000-08:00

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

2009-12-09T04:56:00.000-08:00

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

2009-12-09T02:06:00.000-08:00

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

2009-12-08T02:15:00.000-08:00

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

2009-12-07T01:57:00.000-08:00

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)

2009-12-04T02:18:00.000-08:00

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

2009-12-03T02:14:00.000-08:00

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

2009-12-02T01:55:00.000-08:00

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

2009-11-30T02:03:00.000-08:00

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

2009-11-24T01:53:00.000-08:00

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.