Legal Update

Allison Markoski, Marge Resan, Paul Sherman, Christina Spector, Patti Williams

Special Education TeamWisconsin Department of Public Instruction

August, 2012

Service Animals and the Revised Americans with Disabilities Act (ADA)

Regulations Marge Resan, School Administration Consultant

Manifestation Determinations Patti Williams, School Administration Consultant

Special Education Staff Allison Markoski, School Administration Consultant

Independent Education Evaluations Christina Spector, School Administration Consultant

Communicating with Parents in Their Native Language Paul Sherman, School Administration Consultant

Legal Update 2012

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Service Animals and the Revised Americans with Disabilities Act (ADA)

Regulations

Marge Resan, School Administration Consultant

The use of service animals in schools is NOT specifically addressed in:

The Individuals with Disabilities Education Act (IDEA);

Section 504 of the Rehabilitation Act; or Wisconsin Statutes or Administrative

Code.

Brief Overview of Laws

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In 2010, revised regulations issued by the US Department of Justice.

Title II applies to public entities, including public schools.

NOT under IDEA. The new regulations make it clear this is not an issue of provision of a free, appropriate public education (FAPE).

Americans With Disabilities Act (ADA)

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“Any dog that has been individually trained

to do work or perform tasks for the benefit

of an individual with a disability, including a

physical, sensory, psychiatric, intellectual,

or other mental disability.”

Definition of Service Animal

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Instructs public entities to permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go.

Exceptions: If the animal is out of control; or If the animal is not housebroken.

General Rule and Exceptions

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“Assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing nonviolent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.”

Examples of “Work or Tasks” include, but are not limited to…

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“The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.”

“Work or Tasks” do not include…

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The regulations allow public entities to ask two questions:

Is the dog a service animal required because of a disability?

What work or task has the dog been trained to perform?

Allowable Questions

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Ask about the person’s disability, Require medical documentation, Require a special identification card or

training documentation for the dog, or Ask that the dog demonstrate its ability to

perform the work or task.

Public Entities May NOT:

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Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals.

When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.

Other students or staff: Allergies, etc.

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Be prepared in advance of these requests. Examine policies and procedures to

ensure: Service animals are addressed, and Existing policies and procedures are in

compliance with revised regulations. Ensure policies and procedures are

implemented consistently and as written.

So what should districts do?

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http://www.ada.gov/service_animals_2010.htm

Remember – not an issue of FAPE.

For more information:

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Manifestation Determinations

Patti Williams, School Administration Consultant

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Change of Placement

A change of placement occurs if the removal is for more than 10 consecutive days; or

The student has been subjected to a series of removals that constitute a pattern because:

Of More than 10 cumulative school days in a school year;

The child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and

Of such additional factors as the length of each removal, the total amount of time removed and the closeness in time

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Change of Placement Whether there is a change of placement is

determined on a case-by-case basis by school personnel

If there is a change of placement -- Parents must be notified of the decision and provided

a procedural safeguards notice Services are determined by the child’s IEP team A manifestation determination is required

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Manifestation Determinations A manifestation determination is only required in

situations that constitute a disciplinary change in placement

Manifestation Determinations must be made within 10 school days after the date on which the decision to change the child’s placement is made because of a violation of a code of student conduct

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Manifestation Determinations(Continued)

The school district, the parent and relevant members of the IEP team determine whether the conduct is manifestation of the child’s disability

In making the determination, all relevant information in the student’s file must be reviewed, including the child’s IEP, teacher observations, and information provided by the parents.

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Manifestation Determinations(Continued) The conduct must be determined to be a

manifestation of the child’s disability if it is determined that:

The conduct was caused by, or had a direct and substantial relationship to, the child’s disability; or

The conduct was the direct result of the agency’s failure to implement the IEP.

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When the behavior is a manifestation of the child’s disability

The student must be returned to the placement from which the child was removed (certain exceptions apply)

Has a behavioral intervention plan (BIP)--the IEP team must review the plan, its implementation, and modify, if needed to address behavior

No BIP—IEP team must conduct a functional behavioral assessment, develop and implement a BIP

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When the behavior is not a manifestation of the child’s disability

The school district may proceed with the change in placement

Services must be provided as determined by the IEP team

The IEP team also determines where the services will be provided

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Exception/Interim Alternative Educational Setting

45 school days IAES must be determined by the IEP

team Only for

Weapons Illegal drugs or controlled

substances Serious bodily injury

Special Education Paraprofessionals

Allison Markoski, School Administration Consultant

PI 34.04 of the Wisconsin Administrative Code defines “aide” as:

“a school employee who works under the direct supervision of a licensed teacher in a school or district whose responsibilities include, but are not limited to, supporting the lesson plan of the licensed teacher, providing technical assistance to the teacher, helping with classroom control or management, and other duties as assigned. Aides may not serve as substitute teachers. “

WDPI Teacher Licensing uses the term “aide.”

IDEA and NCLB use the term “paraprofessional.”

Definition of Paraprofessional

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Special Education Program Aide License-#883Special Education Program Aide License-#883

Requires HS diploma & fingerprints.

Pay $75.00 fee.

Hiring requirements are established by the district.

Requires HS diploma & fingerprints.

Pay $75.00 fee.

Hiring requirements are established by the district.

Who must obtain a Special Education Program Aide license? Who must obtain a Special Education Program Aide license?

A paraprofessional who is assigned to assist in providing special education services per student’s IEP must hold the license, unless the individual holds a valid WDPI teaching license.

A paraprofessional who is assigned to assist in providing special education services per student’s IEP must hold the license, unless the individual holds a valid WDPI teaching license.

What are paraprofessional responsibilities? What are paraprofessional responsibilities?

Supports the lesson plan of a licensed teacher.

Provides technical assistance to the teacher.

Helps with classroom management.

Other duties as assigned. The paraprofessional cannot be assigned teacher duties.

Supports the lesson plan of a licensed teacher.

Provides technical assistance to the teacher.

Helps with classroom management.

Other duties as assigned. The paraprofessional cannot be assigned teacher duties.

What are teacher responsibilities?What are teacher responsibilities?

Plans and delivers instruction. Diagnoses learning needs. Prescribes content delivery through classroom

activities. Assesses student learning. Reports outcomes to administrators and

parents. Evaluates the effects of instruction.

Plans and delivers instruction. Diagnoses learning needs. Prescribes content delivery through classroom

activities. Assesses student learning. Reports outcomes to administrators and

parents. Evaluates the effects of instruction.

What does “under the direct supervision of a licensed teacher” mean? What does “under the direct supervision of a licensed teacher” mean?

Regular, continuing interaction between a properly licensed SPED teacher or a

licensed SPED director and a paraprofessional including time to evaluate the

services provided.

Sufficient contact between the SPED teacher and paraprofessional.

Sufficient contact between the SPED teacher and student to diagnose

educational needs, prescribe teaching and learning procedures and evaluate the

effects of teaching.

IDEA COMPLAINT 12-013: http://dpi.wi.gov/sped/complaints/com12013.html

Regular, continuing interaction between a properly licensed SPED teacher or a

licensed SPED director and a paraprofessional including time to evaluate the

services provided.

Sufficient contact between the SPED teacher and paraprofessional.

Sufficient contact between the SPED teacher and student to diagnose

educational needs, prescribe teaching and learning procedures and evaluate the

effects of teaching.

IDEA COMPLAINT 12-013: http://dpi.wi.gov/sped/complaints/com12013.html

May a paraprofessional work as a substitute teacher?May a paraprofessional work as a substitute teacher?

If the individual has a current teaching license, a paraprofessional may serve as a substitute for a licensed teacher.

Refer to the WDPI TEPDL website for hiring a short-term and long-term substitute teacher.

If the individual has a current teaching license, a paraprofessional may serve as a substitute for a licensed teacher.

Refer to the WDPI TEPDL website for hiring a short-term and long-term substitute teacher.

Does a WDPI licensed teacher need a Special

Education Program Aide license to work as a

special education paraprofessional?

Does a WDPI licensed teacher need a Special

Education Program Aide license to work as a

special education paraprofessional?

An individual who holds a valid WDPI teacher license does not need a Special Education Program Aide license.

An individual who holds a valid WDPI teacher license does not need a Special Education Program Aide license.

Does an educational interpreter for students

who are deaf or hard of hearing need to hold a

Special Education Program Aide license?

Does an educational interpreter for students

who are deaf or hard of hearing need to hold a

Special Education Program Aide license?

No. Interpreters must obtain the Educational Interpreter – Deaf or Hard of Hearing license #825.

No. Interpreters must obtain the Educational Interpreter – Deaf or Hard of Hearing license #825.

May a paraprofessional teach in a team teaching situation? May a paraprofessional teach in a team teaching situation?

No. A paraprofessional cannot be assigned teacher

duties.

No. A paraprofessional cannot be assigned teacher

duties.

May a paraprofessional be assigned to provide

special education services to a student with a

disability in a homebound or neutral site?

May a paraprofessional be assigned to provide

special education services to a student with a

disability in a homebound or neutral site?

A paraprofessional may not be assigned teaching duties in a homebound or neutral site.

A paraprofessional may support the instructional activities directly introduced to a student by the licensed special education teacher.

Refer to IDEA state complaint #00-033 at http://dpi.wi.gov/sped/complaints/com00033.html.

A paraprofessional may not be assigned teaching duties in a homebound or neutral site.

A paraprofessional may support the instructional activities directly introduced to a student by the licensed special education teacher.

Refer to IDEA state complaint #00-033 at http://dpi.wi.gov/sped/complaints/com00033.html.

Must a paraprofessional who assists students with disabilities in community-based instruction obtain a Special Education Program Aide license?

Must a paraprofessional who assists students with disabilities in community-based instruction obtain a Special Education Program Aide license?

A paraprofessional who is assigned to assist in providing special education services per student’s IEP must hold the Special Education Program Aide license.

Example – work setting, shopping, etc…

A paraprofessional who is assigned to assist in providing special education services per student’s IEP must hold the Special Education Program Aide license.

Example – work setting, shopping, etc…

May a paraprofessional be assigned to assist in a speech and language program?

May a paraprofessional be assigned to assist in a speech and language program?

Under the direct supervision of a licensed speech and language pathologist.

Not qualified to provide speech and language therapy.

Review and reinforcement can be provided by other licensed staff including

sped paraprofessionals that service should be reflected in the IEP, but not identified as speech and language

therapy.

Under the direct supervision of a licensed speech and language pathologist.

Not qualified to provide speech and language therapy.

Review and reinforcement can be provided by other licensed staff including

sped paraprofessionals that service should be reflected in the IEP, but not identified as speech and language

therapy.

May a paraprofessional have access to a student’s IEP?May a paraprofessional have access to a student’s IEP?

This is a local district or school decision. This is a local district or school decision.

Should a student’s IEP state who provides special education services? Should a student’s IEP state who provides special education services?

The IEP generally does not name the specific individual providing the support.

The IEP generally does not name the specific individual providing the support.

WDPI Suzan Van Beaver, School Administration Consultant

(608) 267-9168, suzan.vanbeaver@dpi.wi.gov

Wisconsin Special Education Paraprofessionals http://dpi.wi.gov/sped/paraprof.html

Special Education Aide License Requirements http://www.dpi.wi.gov/tepdl/aide.html

Frequently Asked Questions About Special Education Paraprofessionals

Information Update Bulletin 10.05: http://dpi.wi.gov/sped/bul10-05.html

For More Information…

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Independent Educational Evaluations (IEEs)

Christina Spector, School Administration Consultant

The Basics Parents have the right to an IEE Conducted by a qualified examiner who is not an

employee of the LEA Publically funded

If parent disagree with the LEA’s evaluation of the child.

1 publically funded IEE for each evaluation

How LEAs Should Respond Inform parents about where an IEE may be

obtained and district’s criteria. Respond without unreasonable delay

Provide the IEE at public expense OR Request a due process hearing to show that its

evaluation is appropriate

Parents have the right to obtain public funding for an IEE only after the local educational agency completes its evaluation.

Words of Caution Know where you are at in the process before

responding Don’t assume IEEs are only at public expense Districts may ask for a reason why a parent

objects to the evaluation, but can’t require one. Districts can’t refuse to pay for an IEE because

the parents failed to notify the district that they were going to get a publically funded IEE.

IEE Criteria Examiner qualifications Geography Maximum amounts Unique circumstances must be allowed

Results Convene an IEP team meeting Review the IEE Discuss the results Consider the IEE in any eligibility, program

planning, and placement discussions about FAPE

Provide the parent with prior written notice of the team’s decision

Resources 34 CFR § 300.502 Wis. Stat. 115.792(1)(a)(1.) Bulletin 99.02 Bulletin 01.04 OSEP Memorandum RE: Independent

Educational Evaluations 9/10/2001

Communicating with Parents in Their Native Language

Paul Sherman, School Administration Consultant

IDEA

Title VI of the Civil Rights Act of 1964

Why?

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IEP team meetings

Required notices

“The IEP”

Other school to home communication

When?

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YES

Bottom Line

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