Top 10 Mistakes In Special Education.IAASE.TEE Version.02 ...

© 2019 Engler Callaway Baasten & Sraga, LLC 1

IAASE WebinarFebruary 13, 2019

Teri E. Engler, Esq.Cynthia M. Baasten, Esq.www.englerlawgroup.com

TOP TEN MISTAKES IN SPECIAL EDUCATION: AVOIDING LITIGATION IN 2019

MISTAKE #1: DELAYS IN EVALUATIONS TO IMPLEMENT RtI/MTSS INTERVENTIONS

Delays in evaluations (and then eligibilitydeterminations and IEP development), based onthe need to start or finish the RtI/MTSS process,are likely to result in findings of child find andFAPE violations.

TOP TEN MISTAKES IN SPECIAL EDUCATION


See Dear Colleague Letter: Dyslexia Guidance, 115LRP 50994 (OSERS 10/23/15):

When a district uses MTSS/RtI to identify students atrisk for poor learning outcomes—including those whomay have dyslexia, dyscalculia, or dysgraphia--children who do not (or only minimally) respond mustbe referred for an evaluation to determine if they areIDEA-eligible.

MISTAKE #1

See Memorandum to State Directors of Special Education,Preschool/619 State Coordinators, Head Start Directors, 67IDELR 272 (OSEP 4/29/16):

As with other students with known or suspected disabilities, theRtI process may not be used to delay or deny an evaluation forpreschool special education services under the IDEA. A districtmay not decline a child find referral from a preschool programuntil it monitors the child’s developmental progress using RtIprocedures.

MISTAKE #1


See, e.g., Avaras v. Clarkstown Central School District, 73IDELR 50 (S.D.N.Y. 9/28/18):

Elementary school student was denied a FAPE where thedistrict failed to evaluate the student until 16 months afterbeginning RtI interventions and 9 months after the studentbegan receiving Tier 3 interventions and continued tostruggle academically.

MISTAKE #1

MISTAKE #2: LACK OF FOLLOW-THROUGH/ PROACTIVE REQUESTS FOR INFORMATION AFTER

RECEIVING POTENTIAL CHILD FIND TRIGGERS

Missing potential “child find” triggers under the IDEA,such as frequent absences, hospitalizations (especiallypsychiatric ones), diagnoses/information on school healthforms, etc., and failing to take proactive steps uponreceiving such information, often lead to findings that thestudent was denied a FAPE.



Procedures developed to fulfill the “child find” responsibilityinclude, in relevant part (but are not necessarily be limited to),the ongoing review of each child's performance and progressby personnel in order to refer those children who exhibitproblems that interfere with their educational progress and/ortheir adjustment to the educational setting, suggesting thatthey may be eligible for special education and related services.

23 Ill. Admin. Code §226.100

MISTAKE #2

Common Errors Include Failures To:

• Closely monitor student absences and hospitalizations

• Provide interventions to and monitor students withexcessive absences and/or tardies from school

• Request the parent’s written consent to exchangeinformation with private service providers

MISTAKE #2


Common Errors Include Failures To:

•Timely schedule a domain meeting or IEP conference toreview any reports, letters, scripts, and/or dischargesummaries from private service providers

•Timely conduct evaluations or reevaluations, whichmay include “atypical” evaluations

MISTAKE #2

See, e.g., A.W. v. Middletown Area School District, 68 IDELR 247 (M.D. Pa. 10/25/16):

Where a student with a generalized anxiety disorder and other diagnosesexhibited avoidance behaviors at school and then stopped attendingaltogether, hearing officer found that the district denied FAPE by failingto timely evaluate and develop an IEP for the student.

Hearing officer found that the 13-month delay produced a compoundingeffect of the student’s avoidance behaviors and awarded compensatoryservices in the form of 134.5 hours of psychological therapy services, 110hours of vocational services, 39 hours of tutoring by a general educationteacher (all of which were upheld by the court on appeal).

MISTAKE #2


See, e.g., Krawietz v. Galveston IndependentSchool District, 118 LRP 33959 (5th Cir. 8/17/18):

Court held that a 10th-grade student’s hospitalization,two theft incidents, and deteriorating academicperformance triggered the district’s child find duty.The court concluded that the district denied thestudent a FAPE by waiting 6 months to evaluate him.

MISTAKE #2

MISTAKE #3: FAILURE TO CONDUCT THOROUGH EVALUATIONS/REEVALUATIONS

Failure to conduct thorough evaluations andreevaluations, and/or relying on private providerdiagnoses or evaluations instead of conductingthorough evaluations, can result in school districtliability.



School personnel and parents must identify all neededassessments to ensure that a full and individual evaluationis conducted, including:

• Reviewing existing information about the student; and

•Deciding what additional evaluation data are needed ineach of the relevant domain areas (and from whatsource(s)) in order to determine ~

MISTAKE #3

• Whether the child has, or continues to have, one or more of thedisabilities;• The present levels of performance and educational needs of the child;• Whether the disability is adversely affecting the child’s education;• Whether the child needs (or continues to need) special education and

related services; and• Whether any additions or modifications to the child’s special

education and related services are needed to enable the child to meetthe goals set out in his or her IEP and to participate appropriately inthe general curriculum.

34 C.F.R. §§300.301, 300.305

MISTAKE #3


See, e.g., A.W. v. Middletown Area School District, 65IDELR 16 (M.D. Pa. 1/28/15):

The district denied a student FAPE by only seeking apsychiatric evaluation for a student with anxiety, ratherthan a “full and individual” evaluation.

MISTAKE #3

Failing to properly respond after receiving an evaluationreport or other information from a private provider can alsolead to problems ~

▫ Within 10 calendar days after receiving a report of anindependent evaluation conducted at either public orprivate expense, the district must provide written notice(i.e., send a notification of conference) stating the date uponwhich the IEP team will meet to consider the results. 23 Ill.Admin. Code §226.180(d).

MISTAKE #3


See, e.g., Z.B. v. District of Columbia, 72 IDELR 27 (D.C.Cir. 5/1/18):

Where the district merely accepted a private evaluationprovided by parents, court held the school district failed toconsider whether additional evaluation of the student wasnecessary to develop an IEP tailored to meet the student’sunique needs.

MISTAKE #3

MISTAKE #4: WAIVING TRIENNIAL REEVALUATIONS

Failing to conduct triennial reevaluations at all or on time violates legal requirements and may also result in a denial of FAPE.



A reevaluation must occur at least once every 3years, unless the parent and the school districtagree that a reevaluation is unnecessary.

34 C.F.R. §300.303(b)

MISTAKE #4

The decision of whether to conduct or waive a three-yearreevaluation must be made individually for each child.

In determining whether a reevaluation is necessary, thedistrict and parent must consider the child’s educationalneeds, which may include whether the child isparticipating in the general education curriculum andbeing assessed appropriately.

Analysis of Comments and Changes, 71 Fed. Reg. 46640-46641

MISTAKE #4


In reaching an agreement that a reevaluation isunnecessary, the parent and district should discuss theadvantages and disadvantages of conducting areevaluation, as well as what effect a reevaluationmight have on the child’s educational program.

Analysis of Comments and Changes, 71 Fed. Reg. 46641

MISTAKE #4

See, e.g., New Mexico Public Education Department, 115 LRP12278 (SEA NM 3/2/15):

Hearing officer found that because the conflicts between existinginformation from the district and from private evaluation reportswere “so endemic and far reaching,” the district’s failure toconduct a comprehensive reevaluation (vs. just review of existingdata) to resolve these conflicts in itself deprived the IEP team ofreliable information needed to fashion an appropriate IEP, therebydepriving the student of FAPE.

MISTAKE #4


MISTAKE #5: INCOMPLETE/INCONSISTENT BASELINE DATA IN THE IEP

Incomplete or inconsistent statements of adverseeffects/identified needs and PLAAFPs often resultin incomplete or otherwise inadequate IEPs.


Upon completion of the administration of assessmentsand other evaluation measures, a group of qualifiedprofessionals and the parent determines whether thestudent is a child with a disability under the IDEA andthe educational needs of the child.

34 C.F.R. §300.306

MISTAKE #5


In interpreting evaluation data for the purpose of determining if astudent is child is a child with a disability and his/her educationalneeds, each school district must ~

• Draw upon information from a variety of sources, including aptitudeand achievement tests, parent input, and teacher recommendations, aswell as information about the child's physical condition, social orcultural background, and adaptive behavior; and

• Ensure that information obtained from all of these sources isdocumented and carefully considered.

34 C.F.R. §300.306

MISTAKE #5

Adverse Effect on Educational Performance:

• “Adverse effect” is not defined under IDEA or its regulations.

• The “adverse effect” on a child’s education performance need not besignificant. Rather, any adverse effect will be sufficient for this componentof the eligibility determination process.

• However, the test is not whether something, when considered in theabstract, can adversely affect a child’s educational performance, butwhether in reality it does.

Marshall Joint School District No. 2 v. C.D., 51 IDELR 242 (W.D. Wisc.01/08/09); reversed on other grounds, 54 IDELR 307 (7th Cir. 08/02/12)

MISTAKE #5


Data is essential for an accurate and thoroughidentification of a student’s academic,functional, and development needs (whichserve as the foundation for a defensible IEP).

MISTAKE #5

The IEP Must Include A Statement of The Student’s PresentLevels of Academic Achievement and Functional Performance,including:

• How the disability affects the student’s involvement andprogress in the general education curriculum; or

• For pre-school children, how the disability affects the child’sparticipation in appropriate activities.

34 C.F.R. §300.320(a)(1)

MISTAKE #5


“Without a clear identification of a student’s present levelsof performance, the IEP cannot set measurable goals toevaluate the child’s progress and determine whicheducationally related services are needed. The present levelof performance statement helps establish a baseline, orstarting point, for measuring the student’s progress.”

North Independent School District, 117 LRP 3037 (SEA TX 2016)

MISTAKE #5

Typical errors made by school personnel in this area include:

• Failing to create a specific list of identified deficits/needs• Failing to support present level statements with specific

information and data• Failing to provide explicit baseline information in the

PLAAFP as the foundation for the goal statement and short-term objective or benchmarks

MISTAKE #5


MISTAKE #6: WRITING BROAD, VAGUE, IMPRECISE, AND/OR UNMEASURABLE IEP GOALS

If you can’t defend the IEP goals, you will likely beunable to defend the IEP (or provision of FAPE tothe student).

TOP TEN MISTAKE IN SPECIAL EDUCATION

The IEP Must Include Measurable Annual Goals that reflectconsideration of the State Goals for Learning and Illinois LearningStandards (and Common Core State Standards), including academicand functional goals designed to:

• Meet the student’s needs that result from the disability to enable thestudent to be involved and progress in the general educationcurriculum; and

• Meet each of the student’s other educational needs that result fromthe disability.

34 CFR §300.320(a)(2)(i); 23 Ill. Admin. Code §226.230

MISTAKE #6


The IEP Must Include A Description of:

How progress towards meeting the annual goals will bemeasured; and

When periodic reports of IEP goal progress will beprovided.

34 CFR §300.320(a)(3)

MISTAKE #6

Common Mistakes:

• Failing to include baseline data in present level statementsfor IEP goals

• IEP goals and/or objectives for which there is no baselinedata or mismatched baseline data

• Imprecise or vague language that cannot be measuredobjectively

• Evaluation procedures or criteria with no rational basis

MISTAKE #6


Common Mistakes:

• Multi-faceted goals and/or objectives with multiplesubparts to measure• Failing to create goals to address all areas of

identified educational need• Repeating the same IEP goals and objectives year after

year

MISTAKE #6

See, e.g., Liberty Union High School District, 71 IDELR 49 (SEA CA 2017):

Spelling and reading goals were inadequate because they did not take intoaccount the student’s unique needs.

• The spelling goal did not define the type of work upon which the goalwould be measured, and the student ended up using spell-check as atool to meet the goal.

• The reading goal failed to show a direct relationship between the presentlevels, the goals, and the educational services to be provided. It called forthe student to read a passage over and over again and memorizevocabulary, rather than learn to read the words.

MISTAKE #6


See, e.g., Hawaii Public Schools, 118 LRP 3336 (SEA HI 2018):

Student’s IEP goals were overbroad and vague.

• Two of the goals were subjective, stating the student’s wordsneeded to be “positive,” “respectful,” and “appropriate”; they werealso overbroad, as they were not specific as to under whatcircumstances the goals were to apply.

• The third goal was overbroad and unrealistic, as it did not define“strategies” for behavior improvement and expected student withsevere behavior concerns to improve drastically in one year.

MISTAKE #6

MISTAKE #7: WAITING TOO LONG BEFORE CONDUCTING FBAs

AND DEVELOPING BIPs

Failure to address student behavioral issues soonerrather than later, and thoroughly, can result inheadaches for school personnel and liability for schooldistricts.



If a student’s behavior impedes his/her learning or thatof others, the IEP team must consider positiveinterventions, supports, and strategies to address thebehavior. 34 C.F.R. §300.324

The student’s behavior must also be discussed by theIEP team at every IEP meeting. This may includeseeking parent consent to initiate a functionalbehavioral assessment (FBA) or FBA update.

MISTAKE #7

• Any person who is knowledgeable about behavioralscience and positive behavior strategies may be givenresponsibility for conducting an FBA.

• School social work and psychological services in the federaland State special education regulations specifically include,but are not limited to, assisting in completing a functionalbehavioral assessment, and in the development of positivebehavioral intervention strategies.

MISTAKE #7


A behavior intervention plan (BIP) is a component of theIEP and must be developed by the IEP team in accordancewith all requirements for developing and reviewing IEPs.

MISTAKE #7

See, e.g., Student with a Disability, 118 LRP 17350 (SEA SD 3/26/18):

School district failed to provide the parents with ameaningful opportunity to participate in the IEP processwhen it developed and revised the student’s BIP withoutconvening an IEP conference and without the parents’involvement.

MISTAKE #7


Typical errors by school personnel in this area include:

• Failing to consider the need to conduct or update an FBA

• Thinking that FBAs/BIPs are only for externalizing behaviors

• Failing to provide services and supports to address astudent’s problematic behaviors until they reach the pointwhere the staff is inclined to place the student morerestrictively and/or administrators request the student’sremoval

MISTAKE #7


•Not consulting with school social worker, schoolpsychologist, and/or other appropriate staff or consultants(e.g., BCBA) when first attempting behavioral supports andstrategies

• Finalizing/revising a BIP outside of an IEP meeting

• Failing to specify setting/location in which strategies andsupports will be provided

MISTAKE #7



• Inadequate monitoring of the effectiveness of the BIP,supports, and strategies

• Failing to ensure that all appropriate staff know about theBIP and how to implement the supports and strategiesduring various school/school-related activities

• Failing to revise the BIP if the existing supports andstrategies are not effective in reducing target behaviors

MISTAKE #7

MISTAKE #8: MISSTEPS INPLACEMENT DISCUSSIONS

A district’s failure to follow the proper process(and consider the proper standards) for makingplacement decisions often results in findings of adenial of FAPE.



The IEP Must Include:

• An explanation of the extent, if any, to which the student will notparticipate with non-disabled students in the regular class,extracurricular, or other nonacademic activities.

• A placement determination (including a student’s eligibility forother educational programs and services such as bilingualeducation, career and technical education, gifted education, andTitle I programs).

34 CFR §300.320; 23 Ill. Admin. Code §226.240

MISTAKE #8

Placement decisions must not be made solely on factors such as:

• Category of disability • Severity of disability • Availability of special education and related services• Configuration of the service delivery system • Availability of space, or • Administrative convenience.

Letter to Trigg, 50 IDELR 48 (OSEP 11/30/07)

MISTAKE #8


LRE Requirement:

• A school district must ensure that, to the maximum extent appropriate,children with disabilities are educated with children who arenondisabled; and

• Special classes, separate schooling, or other removal of students withdisabilities from the regular educational environment occurs only whenthe nature or severity of the disability of a child is such that education inregular classes with the use of supplementary aids and services cannot beachieved satisfactorily.

20 U.S.C. §1412(a)(5), §1413(a)(1); 34 C.F.R. §300.114(a)(2); 23 Ill. Admin. Code §§226.75 and 226.240

MISTAKE #8

LRE Requirement:

• Unless the IEP requires some other arrangement, a student must beeducated in the school he or she would attend if not disabled (i.e.,his/her “home school”).

• The student’s placement must be as close as possible to his or herhome.

• Consideration must be given to the possible harmful effect of aplacement on the student or on the quality of services received.

34 C.F.R. §300.116

MISTAKE #8


Common Mistakes When Making Placement Decisions:

• Discussing placement and LRE without the benefit of a regulareducation teacher’s participation and input

• Failing to consider data on a student’s progress (or lack thereof)when making the placement determination

• Thinking in terms of district/school’s existing programs, not thecontinuum of placement options

• Failing to include or obtain input from representatives of anyprivate program where student is or may be receiving services

MISTAKE #8


• Refusing to consider parent placement requests, includingrequests for the most restrictive placements such as homeboundor residential programming

• Failing to be knowledgeable about the parents’ proposedplacement (or even specifics of the district’s placement options)

• Using generic statements to describe why the IEP team hasrejected other placement options

MISTAKE #8



• Forgetting that the LRE mandate applies to nonacademicand extracurricular activities

•Using phrases like “as appropriate” when describingwhen or to what extent the student will participate withhis/her nondisabled peers during the school day and/orin extracurricular activities

MISTAKE #8


• Discussing more restrictive options than full-time placement inthe general education setting with supplementary aids andservices (including, but not limited to training, consultation,and/or other supports for school personnel) before the team hasanswered the question:

Can all, or at least some, of this IEP be implemented satisfactorilyall, or at least some, of the school day in the general educationenvironment, with special education, related services, and/orother supports?

MISTAKE #8


See, e.g., L.B. v. New York City Department of Education,66 IDELR 94 (S.D.N.Y. 9/21/15):

A school district was ordered to reimburse parents for theirunilateral placement where it failed to respond to parents’requests for information about the district’s proposedplacement for the child. The court found that district’sfailure to respond to the parents’ inquiries excluded themfrom the IEP process.

MISTAKE #8

MISTAKE #9: IMPLEMENTATION AND DOCUMENTATION ERRORS

As lawyers often say, “if there isn’t data, it didn’thappen” (or you will have a very hard timeproving that it did).



Districts must inform staff who were not at the meeting at whichthe IEP was developed, reviewed, or revised of theirresponsibilities.

The IEP must be accessible to each regular education teacher,special education teacher, related service provider, and otherservice provider who is responsible for implementing the IEP.

34 C.F.R. §300.323, 300.324

MISTAKE #9

Common Mistakes:

•Failing to keep updated and accurate service logs

•Not reporting progress using the exact evaluationprocedure(s) and criteria stated in the goal andobjectives

MISTAKE #9


Common Mistakes:

•Not maintaining the raw data, work samples, or otherinformation used in measuring goal progress

•Anecdotal references to progress that don’t match thedata

•Waiting until annual review time to address a child’slimited or stagnant progress

MISTAKE #9

See, e.g., York School Department v. P.Z., 65 IDELR 39 (D.Me. 2/27/15):

A school district was required to reimburse a parent for herunilateral placement of a student with SLD at a boardingschool for two years. Court upheld the hearing officer’sconclusion that the evidence showed that the district did notincorporate specialized instruction into all of the student’sclasses, as provided in the IEP. The court found that thedistrict could not explain with any precision the kind andamount of support that was provided to the studentthroughout the school day.

MISTAKE #9


MISTAKE #10: FAILING TO ENSURE THAT THE RIGHT PEOPLE ARE AT THE TABLE


Districts must take steps to ensure that one or both ofthe parents are present at each IEP meeting or areafforded the opportunity to participate, includingscheduling a meeting at a mutually agreed on time andplace.

34 C.F.R. §300.322(a)

MISTAKE #10


The IEP team must include at least one regulareducation teacher of the child (if the child is, or maybe, participating in the regular educationenvironment).

MISTAKE #10

The regular education teacher should participate in thedevelopment, review, and revision of the child’s IEP,including the determination of:

•Appropriate positive behavioral interventions andstrategies for the child; and

• Supplementary aids and services, program modifications,and supports for school personnel.

MISTAKE #10


The regular education teacher should participate indiscussions about the child’s involvement and progress inthe general curriculum and participation in the regulareducation environment (as well as discussions about thesupplementary aids and services, program modifications,and supports for teachers and other school staff that may benecessary to ensure the child’s progress in thatenvironment).

MISTAKE #10

The regular education teacher may also participate indiscussions about certain other matters in the IEPmeeting (e.g., the communication, motor, sensory,behavioral, or social/emotional needs of the child)where appropriate.

MISTAKE #10


Common Mistakes:

• Over-excusing general education teachers (and other staffmembers) or dismissing them before the end of the meeting

• Neglecting to ask the parent to participate in discussion,provide his/her opinion, and give input throughout the IEPmeeting—and then documenting it

• Failing to prompt staff members to provide their feedback andopinions in more than “their” areas

MISTAKE #10

QUESTIONS?

Cynthia M. Baasten, [email protected]

Teri E. Engler, [email protected]

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