Wednesday, January 18, 2017

New GAO Report on School Bus Safety #GAO #school bus safety

The Government Accountability Office issued a report last week on school bus safety. This topic is important to all who work in education. Some special education students are entitled to transportation as a related service. 34 CFR § 300.34.

The report found that based on GAO’s analysis of data for 2000 to 2014, 115 fatal crashes involved a school bus on average each year—which is 0.3 percent of the 34,835 total fatal motor-vehicle crashes on average each year. The school bus driver and school bus vehicle (e.g., a defect) were cited as contributing factors in 27 percent and less than 1 percent of fatal school-bus crashes, respectively. Seventy-two percent of fatal crashes occurred during home-to-school and school-to-home travel times.

Concerning the safety of special needs buses: Seven percent of buses involved in fatal crashes during this time were classified as special needs school buses

Concerning the training of special needs bus drivers: All eight selected states required school bus drivers to receive training on transporting students with special needs. "Drivers in these states typically receive training on transporting special needs students as part of the training curriculum for entry-level or refresher training for school bus drivers. For example, in New York, under state law, entry-level school bus drivers are required to take a minimum of two hours of instruction related to transporting special needs students during the first year of employment, and all school bus drivers are required to take one hour of annual training related to transporting special needs students.54 5367 PA. CODE § 71.5 (2016). 54N.Y. COMP. CODES R. & REGS. tit. 8, § 156.3(b)(5)(ii)(a) and (b) (2016). Page 28 GAO-17-209 School Bus Safety State officials in a few of our selected states said additional training on special needs transportation is provided to drivers at the local level. A Washington state official told us that the state trains all instructors on special needs transportation topics so the instructors can in turn provide more targeted training to drivers, such as how to secure wheelchairs on a particular bus model."


You can review a highlight sheet here. The full 51 page report is available here.

Tuesday, January 17, 2017

More Coverage on Endrew F Oral Argument #scotus #rowley standard

We had an extensive post analyzing the oral argument before the U. S, Supreme Court last week in the case involving the FAPE standard. You can read our post here.

Here is the analysis of the argument by the prestigious SCOTUS blog.  Here is an analysis of the argument by our friends at the Council for Exceptional Children. Here is a round up by the SCOTUS blog which mentions several stories on the oral argument, including our post!

Also you can listen to the oral argument here at Oyez. Technology is sometimes pretty cool, no?

Monday, January 16, 2017

Weekly Question!

We are running a Series on Procedural Safeguards. Which of the procedural safeguards under IDEA are most effective in protecting the educational rights of children with disabilities? #SpEdProcedures

Wednesday, January 11, 2017

Breaking: Supreme Court Hears Oral Argument on FAPE Standard #rowley standard #FAPE #scotus

The United States Supreme Court heard oral argument today on the case of Endrew F v Douglas County Sch Dist, #RE-1, Case No. 15-827.  The issue in this case concerns the standard for how much a school district must do to provide a free and appropriate public education to a student with a disability the current "some benefit" standard vs. a "meaningful benefit" standard. Please see our previous posts on this case here, here, here and here.

It is of course difficult to read the justices, in terms of how they may rule, based upon their questions. Sometimes they dhow their hand, but other times they play devil's advocate to try to help them flesh out a response to another justice when crafting their position or opinion. That said, Chief Justice Roberts seemed  to be concerned about whether changing the standard might violate the Spending Clause by changing the conditions of receipt of federal funds after the funds have been accepted. He later noted that ambiguity in the current Rowley standard might affect that argument.

Justice Kennedy brought up the cost of services a number of times, but counsel for both sides noted that the Garret F case had resolved that issue. Justice Alito referred to IDEA as a "blizzard of words." He suggested that to have a benefit, you are making progress; that "significant" and "meaningful" are synonymous; and that if something is significant, it is more than "de minimis."Alito's concern was regardless of the words used, how were the lower courts applying the standard. Counsel for the school district said with some bite. Counsel for the parents said that the lower courts need a kick.

Justice Ginsburg stated that a standard with bite and more than de minimis  were not equivalent; and Justice Kagan said that "Well, again, if somebody said to you, write a stature with -- write a standard with bite, I doubt you would come up with the words 'more than merely de minimis'." Justice Kagan noted the many procedural safeguards in IDEA, but noted that the procedures are used to achieve a substantive result, or FAPE. 

The argument took an unusual turn early on when the lawyer for the parent veered away from the meaningful benefit vs some benefit standard which had previously been the issue in the case. He argued instead that the standard for FAPE should involve an analysis of grade level. Counsel for the parent stated that the standard should be "... the IEP should be tailored to achieve in a general educational curriculum at grade level for most kids. And when that is not possible, you would go to the alternate achievement standards." The Solicitor General, arguing on behalf of the United States, argued for a different standard: "It's grade-level competence for students who are in the regular classroom or in the general curriculum...And so that is where we have a slight area of disagreement. (for more severely disabled students)We would say significant progress towards grade-level standards, not as close as possible to grade-level standards." The Solicitor General stated that upon judicial review, the role of the courts should be limited to ensuring that an IEP was appropriate for progress based upon reasonable educational judgment. Counsel for the school district advocated keeping the current Rowley (some benefit) standard. 

Please recall that there are still only eight justices on the Supreme Court. If the court ties 4-4, then the lower court decision is affirmed for the parties to this case but without precedential value for other parties. If the result is not a tie, this could be a very important decision for those who are involved in special education.

The briefs of the parties and many of the amicus briefs are available on the SCOTUS blog here.

The transcript of the oral arguments is available here. 

Tuesday, January 10, 2017

Procedural Safeguards - The Series Part XI #resolution session

This is the tenth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. 




Resolution Session Meetings 

A mandatory resolution session was added to the special education dispute resolution process in 2004. IDEA § 615 (f)(1)(B). Within 15 days of receipt of a due process hearing complaint from a parent, the school district must convene a meeting with the parents, a representative of the LEA with “decision making authority,” and relevant member(s) of the IEP team who have “specific knowledge of the facts identified in the complaint.” The purpose of the resolution session is to permit the parents to discuss their complaint and the underlying facts and to provide the LEA the opportunity to resolve the complaint. The LEA may not bring their lawyer unless the parent has a lawyer. The parties may avoid the resolution session only by waiving the meeting in writing or by participating in mediation. § 615(f)(1)(B)(i). If the LEA has not resolved the complaint to the satisfaction of the parents within 30 days after receipt of the complaint, the hearing may occur and “all applicable timelines for a due process hearing” shall commence. § 615(f)(1)(B)(ii). If the resolution session results in a written settlement agreement, the agreement is legally binding and enforceable in court, except that if either party suffers from “buyer’s remorse,” they may void the agreement within three business days after it is executed. § 615(f)(1)(B)(iii) and (iv). 

Attorneys who represent parents are barred from seeking attorney’s fees and costs if they decide to participate in the resolution session. § 615 (i)(3)(D)(ii)and(iii).  Unless one of the exceptions apply, the 45 day deadline for the hearing officer decision begins after the resolution period ends. 34 C.F.R. §300.510(b)(2).

Unlike the mediation provisions of the Act, which contain a specific guarantee of confidentiality for any discussions during a mediation session, §615 (e)(2)(G), there is no confidentiality protection for discussions that take place during a resolution session. OSEP specifically rejected the request of several commenters on the proposed 2006 federal regulations to clarify whether discussions at resolution meetings are confidential because the Act is silent regarding confidentiality. 71 Fed. Register No. 156 at page 46704 (8/14/06). OSEP went on to say that although the parties could negotiate a confidentiality agreement as a part of their written resolution agreement, a state could not require the parties to a resolution meeting to keep the discussions confidential. 71 Fed. Register No. 156 at page 46704 (8/14/06)(emphasis not in original).

The federal regulations provide that where a parent does not participate in the resolution meeting, the timelines for both the resolution process and the hearing will be delayed. 34 C.F.R. § 300.510(b)(3). To avoid the potential perpetual stay-put problem caused by the proposed regulations, the final federal regulations added a provision that if the LEA is unable to obtain the participation of the parent after reasonable efforts (which now must be documented in the same manner as IEP Team meeting participation), the LEA may, at the conclusion of the 30 day period, request that the hearing officer dismiss the due process complaint. 34 C.F.R. § 300.510(b)(4). 

34 C.F.R. § 300.510(b)(5), that provides that where an LEA fails to schedule the resolution meeting within fifteen days, or the LEA delays the due process hearing by scheduling the resolution session at times or places that are inconvenient for the parent, or the LEA otherwise fails to participate in good faith in the resolution process, the parent may seek the intervention of the hearing officer to begin the due process hearing. 71 Fed. Register No. 156 at page 46702 (8/14/06). Although OSEP stated that it believes that such occurrences would be very rare, it agreed with commenters that parents should be able to request that the hearing officer begin the hearing process timelines in such cases. 71 Fed. Register No. 156 at page 46702 (8/14/06).

Although the resolution meeting includes “relevant” members of the IEP Team, it is clear that the resolution meting is not an IEP Team meeting. The purpose of the resolution meeting is for parents to discuss their complaint and the underlying facts and for the LEA to have an opportunity to resolve the dispute. § 615(f)(1)(B)(i)(IV); 71 Fed. Register No. 156 at page 46701 (8/14/06). In response to a commenter who questioned whether a resolution meeting agreement supersedes decisions made by the IEP Team, OSEP stated that nothing in the Act or regulations requires an IEP Team to reconvene following a resolution agreement that includes IEP-related matters. 71 Fed. Register No. 156 at page 46703 (8/14/06).

The purpose underlying the resolution meeting is described in a portion of the conference committee report that discusses the resolution session states that these changes address “unscrupulous lawyers and an overly complex system” that has “led to an abundance of costly and unnecessary lawsuits.” The conference report goes on to explain that the resolution sessions are needed because “...(t)oo often, schools are unaware of parental complaints and concerns until an official complaint is filed and the legal process is already underway.” H.R. 1350 Conference Report, (November 17, 2004). 

Here is an analysis by CADRE of Resolution Meetings- State Supports and Practices.

Here is a 2006 presentation by me concerning the resolution session at a CADRE National Conference. See also,  Memo to Chief Sch Officers Re Dispute Resolution Procedures Under Part B of IDEA 61 IDELR. 232 (OSEP 7/23/13) (Q and A document with a section on state complaints.)

Monday, January 9, 2017

Weekly Question!

We are running a Series on Procedural Safeguards. Which of the procedural safeguards under IDEA are most effective in protecting the educational rights of children with disabilities? #SpEdProcedures