Special Education Overview Judith C. Saltzman Hickman & Lowder Co., LPA October 11, 2008 Autism Summit [email protected]

Special Education Overview

Judith C. SaltzmanHickman & Lowder Co., LPA

October 11, 2008Autism Summit

[email protected]

© Hickman & Lowder Co. L.P.A. 2008 1

Individuals with Disabilities Education Act, 20 U. S. C. §1401 et seq.

Federal Regs: 34 CFR Part 300. http://

www.edpubs.org/webstore/Content/search.asp

State Law: ORC 3323; OAC 3301-51. Ohio Guidelines: Pending.

2© Hickman & Lowder Co. L.P.A.

2008

Sources of Law

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Purpose of IDEA

“To ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”

© Hickman & Lowder Co. L.P.A. 2008

“Special Education”

Specially designed instruction. To meet child’s unique needs. Includes instruction in schools,

hospitals, institutions and homes. At no cost to parents. 20 U.S.C. §1402(29).


2008

Related Services

Any service required to assist a child with a disability to benefit from special education.

Examples: transportation, speech-language, audiology, psychological services, p.t., o.t., social work, school nurse services, counseling.

20 U.S.C. §1402(26).5


Free Appropriate Public Education

“FAPE”

Special ed and related service. At Public expense and supervision. Meets State standards. Provided in conformity with an

Individualized Education Plan (IEP). 20 U. S. C. §1402(9).


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Age of Eligibility

Third birthday through 22nd birthday.

Pre-school services. School age services.


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Eligibility Categories §1402(3)

Preschool – categorical or developmental delay;

Mental retardation, hearing impairments, speech or language impairments, visual impairments, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments or specific learning disabilities: and


2008

Adverse Effect Adverse impact. Measure by more than just grades and

performance. Decreased/altered functioning in:

Academic Social Behavioral Vocational Motor Communication


Child Find

School district of residence must find and identify eligible children.

Applies even though they have not failed or been retained and are advancing from grade to grade. 34 CFR 300.111 and 300.131


2008

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Multi-Factored Evaluations

Informed parental consent required for initial. 300.300 (a)

Ohio – requires parental consent for re-evaluations.

School District may file due process if parental consent for an initial is not given. Ohio applies this to re-evals.


Time for Initial MFE

IDEA 2004: 60 days, but state may have different rule.

New ODE Reg: School has 30 days to decide whether to honor parental. request for MFE. 3301-51-06(B)(3).

Effectively extends time period to 90 days.


MFE’s – Cont’d.

Variety of assessment tools. To gather relevant functional,

developmental and academic information about the child.

Including information provided by the parent.

Assist in determining content of IEP. Ability to access general curriculum.


MFE’s – Cont’d. Assess all areas related to

suspected disability – health, vision, hearing, social and emotional, intelligence, academic performance, behavior, communicative status and motor abilities 300.304 (c)(4)

Sufficiently comprehensive to i.d. all needs “whether or not commonly linked 300.302(c)(6)


2008

Conclusion of MFE

Eligibility Determination Group of “qualified professionals”

and the parent. 300.306 Parental Right to Participate


Parents Right to Copy of MFE Old ODE reg – not addressed IDEA 2004 – Parent right to MFE “upon

completion of the administration of assessments and other evaluation measures”

New ODE reg -- school district to provide MFE before next IEP meeting or within 14 days after the MFE meeting 3301-51-06 (G)(1)(b)(ii)


Independent Ed. Evaluation

Disagree with MFE Need not tell school reasons Parent selects evaluator Schools may impose cost controls

that do not interfere with the right of an MFE

One per MFE


2008

Present levels and functional performance 20 USC 1414(d)(1)(a); 34 CFR 300.320

Measurable annual goals, both academic and functional To be involved in and make progress in

general ed curriculum, Meet other educational needs that result

from disability

18© Hickman & Lowder Co. L.P.A. 2008

IEPs

IEPs Cont’d.

Benchmarks required in federal regs only for children who take alternate assessments. Ohio – requires benchmarks for all.

How progress will be measured. Address behavior that interferes

with learning.


2008

IEPs Cont’d. Statement of spec. ed, related services,

and supplementary aids and services “based on peer-reviewed research to the extent practicable” to Advance appropriately Progress in gen ed curric “and to participate

in extracurricular and other nonacademic activities 34 CFR 300.320(a)(4)(ii)

Extent of non-participation in reg ed


2008

IEPs Cont’d.

Accommodations in testing to measure academic achievement and functional performance

Date for beginning of services and anticipated frequency, location and duration of services


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Services

If parent refuses services, school district may not file due process, but has no obligation to provide FAPE 300.300(b)

Parent may reject some services and still accept others May remove the school district’s

obligation to provide FAPE


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IEPs -Transition

First IEP to be in effect when turn 16; Ohio – starts at 14

Appropriate, measurable postsecondary goals related to training, education, employment, and, where appropriate, independent living skills;

Services to assist in reaching goals


2008

Process drives placement . Knable v. Bexley City School District, 238

F. 3d 755 (6th Cir. 2001). Parent must be a member of the group

deciding placement, unless parent refuses to participate. 300.327, 300.500

Placement – where child would attend if nondisabled: unless the IEP requires some other arrangement. 300.116

Ohio: Parental consent required for change of placement.


2008

IEPs -- Placement

Methodology is On the Table

IDEA mandates use of research based teaching methods.

Ask for research supporting methodology used by school district.

Even if research based, if it doesn’t work for your child, get rid of it.


2008

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How Much Educational Benefit Must the IEP Confer? Original case: Bd. of Educ. V. Rowley,

458 U.S. 176 (1982) – IEP must provide educational benefit but need not maximize student’s potential.

Deal v. Hamilton County Board of Education, 392 F. 2d 840 (2004): “IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue.’”


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If school district offers an IEP that does not provide FAPE.

Parent can place in appropriate private school and seek tuition later.

Ten days’ notice, or notice at IEP meeting.

Get expert help.© Hickman & Lowder Co. L.P.A.

2008

Unilateral Parental Placements

Termination of Eligibility

MFE shows child is no longer disabled.

22nd birthday. Graduation with all IEP goals met,

including transition goals. GED does not terminate eligibility.

300.102 – Ohio’s GED is not aligned to content standards.


2008

Diagnosing SLD: Same Definition

Disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written.

Imperfect ability to listen, think, speak, read, write, spell, do math.

Includes dyslexia. 34 CFR 300.8(c)(10)


Old Diagnostic Approach: Discrepancy

Discrepancy between ability (i.q. test) and achievement (Woodcock-Johnson, WIAT, etc.

Problem: Why is there a discrepancy?

Why wait for it to develop?


Response to Intervention (RTI)

If children receive appropriate research based reading instruction early enough, fewer kids will be id’ed.

Have effective, research-based programming in effect for all kids so that only the most severe will require special ed to address needs.


New SLD Eligibility Criteria:301-51-06(H)(3) Inadequate achievement despite

appropriate instruction, in one of the following areas: Oral expression Listening comprehension Written expression Basic reading skill (phonology based) Reading fluency skill Reading comprehension Math calculation Math problem solving, or


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What is Appropriate Reading Instruction? No Child Left Behind: “essential

components of reading instruction” means explicit and systematic instruction in Phonemic Awareness; Phonics Vocabulary Development Reading Fluency Reading Comprehension Strategies 20 U.S.C. §6613(3)


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New SLD Criteria, Applied: Child does not make sufficient

progress to meet age or state-approved grade level stands “when using a process based on” RTI; or

Child exhibits pattern of strengths and weaknesses in performance; and


New SLD Criteria, Cont’d.

Deficits not primarily the result of. . Visual, hearing, or motor disability Mental retardation Emotional disturbance Cultural factors Environmental or economic

disadvantage Limited English proficiency


RTI: Regular ed. procedure that should precede sped referral

School district may not use intervention to delay an MFE.

If no interventions prior to referral, intervention should be implemented during the “same sixty-day time frame” for MFE. 3301-51-06(A)(3)

See also 3301-51-06 (H)(3)(d)(v): RTI “may not be used to delay unnecessarily a child’s being evaluated to determine eligibility for special education services.”


BUT. . . See 3301-51-06 (H)(1)(d)(i)

School may use RTI to evaluate for SLD, and process does not begin until the intervention data has been collected.

School has to do the intervention to get the data, so, here the regs seem to authorize delaying the MFE for RTI.

Request for MFE ≠ Consent.© Hickman & Lowder Co. L.P.A.

2008 37

Alternative Criteria for SLD

34 CFR 300.307 permits the state to develop alternative criteria.

ODE’s regs include no criteria for approving or disapproving proposals for alternative methods. See 3301-51-06(H)(1)(a)(iii)

Schools request permission from ODE.


Extended School Year

Federal Rule: Each school district must “ensure that extended school year services are available as necessary to provide FAPE,” as determined by the IEP team.

34 CFR 300.106


Ohio’s Extended School Year Reg.

3301-51-02(G): Whether necessary for FAPE and, Additionally, the school district shall consider Whether ESY needed to “prevent

significant regression of skills or knowledge retained by the child so as to seriously impede the child’s progress toward the child’s educational goals; and


ESY, Cont’d.

Whether ESY needed to avoid something more than “adequately recoupable regression.”

But, FAPE is more than the absence of regression.

Right to an IEP that offers “meaningful educational benefit” in relationship to the child’s ability.


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Discipline Protections

34 CFR 300.536 – change of placement

More than ten consecutive school days of removal; or

A series of removals totaling over ten days.

Manifestation hearing w/in 10 days. Due process of parent disagrees.


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Manifestation Analysis Whether conduct in question was caused

by, or had a direct and substantial relationship to the child’s disability.

Whether conduct in question was the direct result of the school’s failure to implement the IEP.

Need letter from your doctor, psychologist, therapist, etc.


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If Behavior Was Manifestation Return child to prior placement unless

Agreement Drugs/weapons/serious bodily injury Appeal and order

Functional Behavior Assessment (FBA)(any time more than 10 days)

Behavior Intervention Plan (BIP) Create if none Review and Revise if in place


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If Behavior Was Manifestation Return child to prior placement unless

Agreement Drugs/weapons/serious bodily injury Appeal and order

Functional Behavior Assessment (FBA)(any time more than 10 days)

Behavior Intervention Plan (BIP) Create if none Review and Revise if in place


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Behavior Not Manifestation Must continue to receive educational

services in Interim Alternative Education Setting To participate in the general ed

curriculum. Progress toward meeting the IEP goals. Comments to regs: “modifies the

concept of FAPE” – school need not replicate all services the child would have received if not removed.


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Remedies U. S. DOE Office of Civil Rights

Discrimination, Harassment File within six months

Ohio Department of Ed complaint File within one year

Ohio Department of Ed – mediation Ohio DOE – facilitated IEP meetings Ohio Department of Ed – due process

Two year statute of limitations


Conclusion

Remember . . . You are your child’s best advocate Build a team around your child Document and memorialize Don’t write angry letters The school expects you to advocate

for your child Good luck


For More Information . . .

Judith C. SaltzmanHickman & Lowder Co., LPA

[email protected]


Documents

Special Education Overview Judith C. Saltzman Hickman & Lowder Co., LPA October 11, 2008 Autism Summit [email protected]