© 2008 Fox Rothschild The Four Tops: Your Primary Responsibilities in Limiting Special Education...

© 2008 Fox Rothschild

The Four Tops: Your Primary Responsibilities in Limiting Special Education Liability

Charter School Lunch and Learn Seminar


Charter School = Local Education Agency (LEA)

As a charter school you operate as a separate, independent local educational agency (LEA)

The Pennsylvania Charter School Law - Act 22 of 1997


The Four Duties of all Charter School personnel in ensuring a FAPE

Child Find Evaluation Program Placement


The Four Duties of all Charter Schools in ensuring a FAPE



Child Find

The Charter School as the LEA must identify ALL eligible children enrolled in the Charter School

Standard is “knew or should have known”

Must be aware of red flags


Child Find

Each charter school must establish - 1. written policies and - 2. procedures


What needs to be in this written policy?

1. Public awareness activities and 2. Systematic Screening

This written policy must be published in the charter school handbook and website.


Mandatory Screening

Hearing and vision Screen at reasonable intervals- to

determine if students are performing on grade appropriate standards in core academic subjects


Optional Screening

A program of pre-referral intervention services

Academic concerns Behavioral concerns Researched based interventions


Optional Screening

Screening or pre-referral interventions may NOT serve as a bar to the right of a parent to request an evaluation, at any time, including prior to or during the conduct of the screening or pre-referral intervention activities.


Child Find

ALL students eligible for special education who need special education and related services must be:- Identified- Located- Evaluated

This includes:- Homeless- Wards of the State


A Student is “Thought-to-be-Eligible” if:

The Charter School has knowledge that the child was a child with a disability before the behavior resulting in the disciplinary action occurred

Standard: The Charter School knew or should have known


Did the Charter School Know or Should It Have Known:

The parent expressed concern in writing prior to the disciplinary incident, to the child’s teacher, administrative or supervisory personnel.

The parent requested an evaluation of the child pursuant to evaluation requirements.

The teacher of the child, or other personnel of the LEA, expressed specific concerns about a pattern of behavior to the director/supervisor of special education.


EXCEPTION-

The Charter School would not be deemed to have knowledge if:- The parent has not allowed an evaluation of the

child;- The parent has refused special education

services; or,- The child has been evaluated and determined to

be not eligible.


RED FLAGS

Poor performance despite classroom accommodations

Poor standardized testing Notable discipline /

behavior / absences Parent / teacher express

concern


RED FLAGS

Retention Placement in

developmental K or transitional 1st

2nd referral to IST Referral for guidance,

counseling or SAP services

Placement in alt. Ed. Placement in drug

treatment Discipline of more than 15

days/year Negative performance

indicators Failure notices


So many more. . .

Any type of behavioral modification strategies

Modifications or accommodations

chronic non-attendance referral to law enforcement Transporting student to a

private school known to serve children with disabilities

Recommending tutoring Poor performance despite

classroom accommodations

Poor standardized testing Notable discipline /

behavior / absences Parent / teacher express

concern


and more. . .

Student’s difficulty with skills, attention, focus, homework completion, peer relationships, teacher relationships, use of

nursing services, tardiness,

Parent’s report difficulties with homework, frustration, request for testing, counseling, diagnosis of ADD/ADHD, private evaluation


Who must play a key role?

Regular Education Teachers- they must be on the look out

Special Education Department- must be a resource for regular education teachers in this process

IST


The Four Duties of Charter Schools Under Law



2nd Duty: Evaluation

Present Education Levels - What are they? Important?

Information from parents / teachers / formal testing/ class work / medical history, etc.

The “Rule Out” Concept


The “Rule Out” Concept

Developmental History Medical condition / health

impairment Speech / hearing / vision /

visual-motor Intellectual functioning

Environment Cultural issues Home life Behavioral functioning Social abilities Attention Gross / fine motor


Eligibility – 2 Prongs

1st Prong: Must be a child with a disability as defined by the IDEA (e.g., intellectually disabled,

hearing impaired, ED, LD, etc.). 2nd Prong: Must, by reason of disability, ALSO

require special education and related services not ordinarily provided in the regular education environment.


Parental Consent

If a parent refuses consent for an initial evaluation, should the LEA continue to pursue the evaluation through mediation and due process procedures? Depends

If a parent refuses consent for an initial placement into special education, the LEA may not pursue such placement through mediation and/or due process procedures.


Evaluation Timelines

Completion of evaluation within 60 calendar days (with summer reprieve).

ER Report at least 10 days prior to IEP meeting although waiver of this timeline is encouraged if documented appropriately.


Reevaluations

Not more than 1x per year, unless agreed upon otherwise between the parent and LEA

At least every 3 years, unless the parent and LEA agree that a reevaluation is unnecessary HOWEVER

Students who are intellectually disabled are still to be reevaluated

at least every two years


Reevaluation

Two possible outcomes 1. Additional data is needed. 2. Determination that additional data is not needed in which

case the Charter School shall notify the child’s parents the reason for the determination and the parent’s right to request assessments.

District shall not be required to perform additional assessments unless requested by parents.


Typical Evaluation Issues

Failing to include classroom teachers in the process OR classroom teachers resisting process

Failing to evaluate the child in terms of the curriculum

Failing to perform an FBA if behavior issue

Failing to fully develop present ed. levels

Not following up on recommendations made in the eval.

Failing to do thorough eval. “Nickel and diming” results with

parent DON’T FORGET TO CONSIDER

SECTION 504 IF NOT IEP ELIGIBLE!!


The Four Duties of all Charter School personnel in ensuring a FAPE



The Successful IEP under IDEA 2004

Special Considerations Present Education Levels Measurable goals (and if

applicable objectives) Baselines Specific description of

related services / SDI Transition planning Behavior addressed (if

applicable) ESY, Supports, etc.


IEP Team Attendance

A member of the IEP team shall not be required to attend an IEP meeting, in whole or in part, if that member, the parent, and the LEA agree that the attendance of that member is not necessary because no modification to the member’s area of the curriculum or related services is being modified or discussed at the meeting.

The same is true even if the meeting involves a modification or discussion of the member’s area of the curriculum or related services if the same agreement occurs, and the member submits input into the development of the IEP prior to the meeting.

For both scenarios, parents’ agreement and consent must be in writing.


Present Education Levels

Where are we now? If you don’t know where you are, how

do you know where you are going? Ultimately - You have to be able to

prove you know the student


True or False?

Sufficient present education levels can consist of the student’s current grades, IQs from the Wechsler Intelligence Scale for Children-IV (WISC IV), and grade equivalents from achievement tests?


Needs

Will form the basis of the student’s weaknesses

Must ALWAYS be addressed somewhere in the IEP.


IEP Timelines

A meeting to develop the student’s IEP is conducted within 30 days of a determination of eligibility

Reviewed annually prior to the expiration of the current IEP

Implemented within 10 school days.


Progress Monitoring

Definition: Ongoing process of assessment and evaluation that involves:- Collecting and analyzing data to determine student progress- Making instructional decisions based on the review and

analysis of student data Reasons for Progress Monitoring

- Determine if instructional method is working- Determine correct instructional levels- Report progress


Progress Monitoring – 7 Steps

1. Measurable annual goals (and objectives) 2. Data collection decision 3. Data collection tools & schedule 4. Representing the data 5. Evaluation of data 6. Instructional adjustments 7. Communicating progress


Transition Supports

Beginning not later than the first IEP to be in effect when the child is 14, and updated annually thereafter

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

ALSO: For a child whose eligibility is terminated because of graduation or exceeding the age eligibility under State law, the LEA shall provide the child with a summary of the child’s academic achievement and functional performance

AND must include recommendations on how to assist the child in meeting his/her postsecondary goals.


Personnel Must have appropriate certification-persons who

provide special education or related services Educational interpreter Paraprofessional

2 years of postsecondary study Possess an associate degree or higher Meet rigorous standard of quality as demonstrated through

State or local assessment 20 hours of staff development activities related to their

assignment Can provide 1:1 support for multiple students, but not at the

same time


ESY

To determine whether ESY is necessary for a student with an IEP, the charter school must consider: - Regression- Recoupment- Whether the student has a sever disability such as: Autism,

serious emotional disturbance, severe intellectual disability, degenerative impairments with mental involvement

- No later then February 28th for student’s with severe disabilities- NOREP to be issued by March 31st for student’s with severe

disabilities- Expedited Due Process


IEP Implementation Issues

Staff not seeing the IEP (or “active” IEP)

Refusal to implement IEP because it does not fit teaching style

Failing to make it clear who will implement the IEP

Failing to provide staff training

Failing to deliver what was promised in the IEP

Failing to provide services at the start of the school year.


Claims concerning failure to implement the IEP as written

NOT defenses: “The parent agreed that we

could do it this way.” “We didn’t tell the parents, but

the IEP wasn’t working so we just decided to change some things.”

“It might have worked, but the student wasn’t cooperating.”


The Four Duties of Charter Schools Under Law



Placement

So, you’ve decided on a program, what next?

Where will program be implemented?

Who decides?


Least Restrictive Environment (LRE) Requirement

The Charter School must ensure that: - (1) To the maximum extent appropriate, and as provided in the IEP, the student with a

disability is educated with nondisabled peers. - (2) Special classes, separate schooling or other removal of a student with a disability from

the regular education class occurs only when education in the regular education class with the use of appropriate supplementary aids and services cannot be achieved satisfactorily.

- (3) A student may not be determined to require separate education because the child cannot achieve at the same level as non disabled peers.

- (4) A student may not be removed from a regular education classroom solely because of the $$$ of keeping the disabled student in the regular education classroom.

- (5) The full continuum of placement options is considered.


Typical Placement Issues

Failure to offer / consider a continuum of placement options Failing to fully consider less restrictive options with better

supports Nobody is trained to provide the services needed We don’t do that here - it will set a precedent One size fits all approach


Discipline A disciplinary exclusion of a student with a disability for more than 10 days

or more than 15 cumulative school days in a school year will be considered a pattern so as to be deemed a change of educational placement.- Manifestation Determination within 10 days (make at least 3 attempts to have the

parent attend)- FBA or review existing behavioral intervention plan

If a special education student is expelled from the charter school, the charter school must provide the student with the educational services until the charter school receives written confirmation that the student has enrolled in another public agency, APS or private school.

Any removal from the current educational placement is a change of placement for a student with an intellectual disability.


What are due process hearings?

Parents or Charter School can request when program dispute

Parents: usually reimbursement, comp. ed.

Charter School: usually perm. to eval., denying evaluation at public

expense

Time consuming Expensive Attorney’s fees Emotional Some very adversarial Remedies: Changes to

program / placement; reimbursement for services, evaluations or private school; compensatory education


Remedies for Violation of the IDEA

Tuition Reimbursement Compensatory Education Damages? Attorneys’ Fees Injunctive/Directive Relief [Prospective Services]


Hypothetical #1

6th grade student enrolls your Charter School in December. Upon enrollment, parent informs you that the student has an ADHD diagnosis and has never received or been evaluated for special education or related services.


Hypo #1

Additionally, your review of the student’s educational records reveals that the student has a history of disciplinary problems, poor attendance and poor standardized test scores.


Hypo #1

The Student’s records also relate that the student was referred for the Comprehensive Student Assistance Program (CSAP) at the end of November.


Hypo #1

What do you do?


Hypothetical #2

A 4th grader in your school has a diagnosis of SLD, has a FSIQ of 73, is performing on a 1st grade level in math and reading (and has been for the last year) and is starting to have behavioral issues. At the student’s IEP meeting the parent requests that their child be placed in a fulltime learning support classroom.


Hypo #2

What do you do if you don’t have a LS classroom?

What do you do if you do have a LS classroom?


Questions???


Contact Information

Mark Fitzgerald, Esq.

610-397-7981

[email protected]

Pamela Halpern, Esq.

610-397-7979

[email protected]

© 2008 Fox Rothschild The Four Tops: Your Primary Responsibilities in Limiting Special Education...

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