Hint for You Be The Judge - Part I

Do these facts remind you of any reported decision?

The answers so far have been terrific. They really show the intelligence and the great SpEd instincts of the readers of this blog.

More soon.
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Procedural Safeguards The Series - Part II

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This is the second 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.Be sure to tell me what you think about the series.

Notice of Procedural Safeguards-

A copy of the procedural safeguards of the notice must be provided to the parents only one time per year, except that it must also be given upon initial referral or parental request for evaluation, upon the first occurrence of filing of a due process complaint, and upon request by a parent.  Section 615(d)(1)(A).  The regulations clarify that the notice must also be provided upon the parents’ filing of the first state complaint  and on the date on which the decision to take disciplinary action is made. 34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46692 (August 14, 2006).  The regulations also make it clear that a parent will receive more than one copy of the notice of procedural safeguards if they also request an evaluation or file a state complaint or due process hearing or they request a copy.  34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46692 (August 14, 2006).  The local educational agency may also place a copy of the procedural safeguards notice on their website if they have one. Section 615(d)(1)(B).  OSEP has noted that publishing the notice on its website does not relieve the LEA of the responsibility of offering the parent a printed copy of the notice unless the parent evidences a clear preference to obtain the information electronically 71 Fed. Register No. 156 at page 46693 (August 14, 2006).

The procedural safeguards notice must include a full explanation of procedural safeguards, written in the native language of the parents (unless clearly not feasible) and written in an easily understandable manner, relating to the following:

`(A) independent educational evaluation;

`(B) prior written notice;

`(C) parental consent;

`(D) access to educational records;

`(E) the opportunity to present and resolve complaints, including--

`(i) the time period in which to make a complaint;

`(ii) the opportunity for the agency to resolve the complaint; and

`(iii) the availability of mediation;

`(F) the child's placement during pendency of due process proceedings;

`(G) procedures for students who are subject to placement in an interim alternative educational setting;

`(H) requirements for unilateral placement by parents of children in private schools at public expense;

`(I) due process hearings, including requirements for disclosure of evaluation results and recommendations;

`(J) State-level appeals (if applicable in that State);

`(K) civil actions, including the time period in which to file such actions; and

`(L) attorneys' fees.

                            Section 615 (d)(2).

OSEP has published a model Notice of Procedural Safeguards in order to reduce confusion about what must be included in the notice.  71 Fed. Register No. 156 at page 46693 (August 14, 2006). The model notice is 44 pages long.   The model notice form is available on the website: Although OSEP frowns upon dual filings of state complaints and due process hearings for the same incident, the regulations clarify that the notice of procedural safeguards must explain both procedures and the differences between the two.  34 CFR Section 300.504(c); 71 Fed. Register No. 156 at page 46693 (August 14, 2006).

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Tech Update; Buzz From New Series

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 As we progress with  two new series, we are getting a lot of favorable reaction.  The answers to the You Be The Judge series are very interesting and remarkably different.  Once again the comparison between special education law and metaphysics raises its head.  Be sure to provide your answer if you'd like to take a turn as the judge.

The Procedural Safeguards update is also exciting some readers.  It is important to occasionally brush up on the law. This type of series reminds us of some key concepts.

Some of the You be the Judge buzz is on Facebook.  As many readers know, we have created a Facebook  Special Education Law Group which has over 860 members.  The discussion boards are always interesting.  In addition, some readers choose to receive these posts on Facebook by friending me.  I have no idea who can read what given the undecipherable rules, but the group is very interesting.  Please check it out.

Another few hundred people receive our tweets on Twitter to alert them that a post has been made.  You can follow us on Twitter here.  

There are also special education law groups that we have created on LinkedIn,  with over 215 members, and Plaxo, which has not ever caught fire.  A lot of people create discussions on those groups.

Most people ensure that they receive our posts by subscribing.  I strongly encourage you to subscribe.  Our big numbers help with our credibility.  You can get three different types of subscriptions: the most common is to subscribe by email and receive our posts directly to your inbox.  You can also subscribe to our RSS feed and receive our posts or headlines in a feed reader or aggregator.  Finally you can get a blidget (blog + widget) which is a widget you can place inside your own blog or website.  Which ever option you choose, please subscribe.  And most importantly, thanks for reading this blog.

Finally don't forget to vote on our current poll concerning whether the changes to §504 will cause litigants to turn to §504 rather than IDEA.  Make your voice heard.

The poll and permanent links to all of the groups and bells and whistles as well as the subscription links and mant other resources can be found on the lefthand side of the blog.

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You Be The Judge - Part I

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This is a new series.  We will provide you with a nice juicy, yet thorny,  fact pattern and you then get to become the hearing officer or judge.  (Not so easy is it?)  Remember though that special ed law is closed to metaphysics than it is to contract law.  There may not always be a "right" answer.  There may be as many correct answers as there were disparate rulings on the last case to be decided by the Supremes.  Remember also the dialectic of special ed law: it is new law and at the same time the law is changed periodically creating a cycle of uncertainty.  So here you go.  Have fun:

Born in 1994, Opie T. was diagnosed with autism at the age of two. When he entered kindergarten at Mayberry Elementary School in Mayberry Valley School District when he was six years old, Opie began receiving special educational and related services from the school district.

          Opie's special education teacher at Mayberry Elementary, led the effort in formulating an IEP for Opie and working with him through his kindergarten and first grade years. Opie's IEPs for kindergarten and first grade included objectives relating to communication skills, self care (including toilet training), independence and motor skills, social interaction and play skills, and academic functioning. They also specified that Opie would split time between the general classroom and a special education classroom.

          His teacher’s evaluations indicate that Opie made significant progress and achieved many of his IEP goals during the time she worked with him.  She also reported, however, that Opie, like many other autistic children, had difficulty generalizing skills, or, in other words, "apply[ing] the skill[s] to different people or different environments," Opie's difficulty in generalizing the skills he learned in school to the home is borne out by discrepancies revealed in an adaptive behavior skills test that was administered to Opie both in the classroom and in his home.

          In the Fall of 2002, Opie's family moved to Mount Pilot School District, and Opie enrolled in second grade at Mount Pilot Elementary. In anticipation of the transfer, the special education teacher at Mount Pilot visited Mayberry and communicated with his previous teacher, as well as Opie's parents, in order to make plans for a smooth transition. A new IEP was adapted from the IEPs that had been developed at Mayberry, and Opie continued to make progress on his goals and objectives during his second grade year.

          Despite the apparent progress at school during his kindergarten through second grade years, Opie's life away from school during the same time paints a much different picture, as his autism manifested itself in various behavioral problems that were especially severe at home. Opie was unevenly tempered, often displaying inappropriate and sometimes violent behavior at home and in public places such as grocery stores and restaurants. He developed various sleep problems going to bed at odd hours, waking up frequently at night, and refusing to sleep in a bed. Opie also developed a habit of intentionally spreading his nighttime bowel movements around his bedroom. In addition, although Opie became toilet trained at school by the time he was in first grade, he was not able to transfer this skill to the home and other settings away from school.

          Understandably, these behaviors took a tremendous toll on Opie's family. Worried that, without intervention, Opie's behavior would become only more dangerous as he continued to grow physically, the family began looking into residential placement options. Through research on the Internet, they discovered the Big Ticket School ("BTS"), which specializes in education of children with autism. Students enrolled in the residential program at BTS live at the Boston campus for 44 weeks out of the year and are supervised 24 hours a day by BTS educators and staff. Opie's family, along with his former teacher , who kept in touch with the family and retained an interest in Opie's education, visited the BTS campus in late Fall 2003 and filled out an application for Opie's admission during the visit.

          At around the same time, Opie's family asked an occupational therapist who runs a private day school for autistic children, as well as his previous teacher, to observe and assess Opie while at school. The OT observed Opie at Mount Pilot Elementary for a three hour period, interviewed Opie's parents, and reviewed charts and video footage of Opie. She reported a number of concerns in the school's work with Opie, including the facts that staff sometimes unknowingly reinforced Opie's unwanted behaviors, that Opie had made little or no progress on many of his goals and objectives, and that Opie had "[g]reat difficulty generalizing skills taught in one environment to natural daily living routines." The OT also expressed concern that Opie had "increase[d] the strength and number of challenging and unwanted behavior[s]" and that, since transferring to Mount Pilot Elementary, Opie had apparently regressed in certain respects. The OT did, however, note many areas in which Opie was improving and stated that "throughout his early education, Opie has made good progress in all areas of development." The OT recommended, among other things, "12 month programming to reduce the risk of regression," increased consistency in training of school staff, and additional parent training. For her part, the previous teacher met with Opie and administered the Autism Diagnostic Observation Schedule test. She reported to Opie's parents that some skills that Opie had previously mastered during his time working with her at Mayberry Elementary were diminished or were no longer present.

          On December 16, 2003, Opie's parents met with his teachers and other school officials for an IEP review meeting. At the meeting, the parents presented a list of goals they had developed based on recommendations from the OT and asked that the goals be included in Opie's IEP for 2004. They also stated, however, that they felt the goals were not attainable at Mount Pilot Elementary and that the only appropriate placement for Opie would be a residential program tailored to autistic children, such as that offered by BTS. The school district officials expressed openness to revising Opie's IEP to include the parents' proposed goals and to working with them to improve their special education program. But they also expressed their belief that the proposed goals were attainable at Mount Pilot Elementary and that residential placement was not necessary. At the meeting's conclusion, the school district officials stated that they planned to revise Opie's IEP and then submit a new draft to the parents.

          Two days after the IEP meeting, on December 18, BTS accepted Opie's application for enrollment. The next day, on December 19, counsel for Opie's family sent the school district a letter stating that the family intended to remove Opie from Mount Pilot Elementary, enroll him at BTS, and seek from the school district reimbursement of the costs of Opie's education at BTS. Opie officially enrolled as a residential student at BTS on January 12, 2004.

          On January 15, 2004, the school district sent to Opie's family a revised, final IEP for 2004. The IEP proposed by the school district incorporated virtually all of the goals requested by the parents, but it called for continued placement at Mount Pilot Elementary rather than the residential placement requested by the parents. Opie's family rejected the IEP, and Opie remained enrolled at BTS.

           You are the hearing officer - how do you rule?

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Procedural Safeguards The Series - Part I

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This is the first 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.

Procedural safeguards are extremely important under our system of special education.  In the first United States Supreme Court decision interpreting the predecessor of the Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et seq (hereafter sometimes referred to as the “IDEA”), the Court stressed the importance of procedural safeguards in the statutory system adopted by the Congress, noting that the procedural safeguards gave parents a “large measure of participation at every stage of the … process.”  Board of Educ., Hendrick Hudson Central Sch. Dist. v. Rowley, 455 U.S. 175, 102 S.Ct. 3034, 3038 and 3049, 553 IDELR 656 (1982).  The court went on to emphasize that compliance with the Act’s procedural safeguards is a critical component of a free appropriate public education. Rowley, supra 102 S.Ct. at 3051.

More recently, the Supreme Court rejected an argument that school districts should have the burden of persuasion due to an advantage in information.  The Court reasoned that Congress had leveled the playing field by requiring school districts to share information and protect the rights of parents by adopting the extensive system of procedural safeguards contained in the IDEA. “Schaffer v. Weast 546 U.S. _____,_____, 126 S.Ct. 528, 44 IDELR 150 (2005).

Section 615 of the IDEA is entitled “Procedural Safeguards,” and most procedural safeguards for parents are contained in that section.  However, some procedural safeguards are found in other sections of the Act or in the federal regulations.  In addition to the required Notice of Procedural Safeguards, Section 615(d), there are a number of specific procedural safeguards.  The specific procedural safeguards include the following: independent educational evaluation , Section 615 (b)(1) and 34 C.F.R. Section 300.502;  prior written notice, sections 615(b)(3)-(4) and (c)(1); informed parental consent, Section 614 (a)(1)(D); access to educational records, Section 615(b)(1); state complaints, 34 CFR Section 300.151, et seq; mediation, Section 615(e); child’s placement during a challenge or “stay put,” Section 615 (j); procedures for an interim alternative education, Section 615 (k); unilateral placement in private school when FAPE in issue, Section 612 (a)(10)(C); due process hearings, Section 615 (f); if a two tiered system, state appeals, Section 615 (q); civil actions appealing a due process decision, Section 615 (q); and attorneys’ fees, Section 615 (i)(C)(3).

 

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Two New Series Coming Soon: Procedural Safeguards and You Be The Judge

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We will be running two new series on these pages soon.  

One will ask you to take on the role of the hearing officer or the judge.  We will set forth a thorny fact pattern and then let you apply special ed law principles to them and decide how you would rule.  In recent trainings, I have been getting a good reaction when I throw out some hypothetical fact scenarios and use them to explain some of the legal concepts. Remember though that special ed law is closed to metaphysics than it is to contract law.  There may not always be a "right" answer.  There may be as many correct answers as there were disparate rulings on the last case to be decided by the Supremes.  Remember the dialectic of special ed law: it is new law and at the same time the law is changed periodically creating a cycle of uncertainty. Yet we persist.

The second series will be an updated version of one we ran a few years ago.  The series will go into some detail in explaining Procedural Safeguards.  This is one of the areas that I work with a lot, and I feel that a refresher is occasionally important. The Individuals With Disabilities Act contains a series of important procedural safeguards, many of which are misunderstood or misapplied.  I hope that this series will provide useful resource information to the many diverse special education stakeholders who read this blog.

If you have any reactions or suggestions as we go along, please leave a comment or contact me.  I love to hear from you.

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We're Famous (Almost) Again!

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For the second time that I am aware of, this blog has been quoted in a law review! We're taking street cred to a whole new level.

Volume 41 of the University of Toledo Law Review contains a note beginning at page 375 by Jeffrey A. Knight.  The article reviews the standards of reviewing when the failure to  implement an IEP constitutes a violation of IDEA. That is, how much of an IEP does a school district have to implement? You can read the article here.

The article quotes us about the hot button issue of IEP implementation.  It also quotes this blog for the proposition that special education law is new law.  Pretty cool, huh?

And get this - footnote number 2 quotes this blog.  Thanks you to Mr. Knight.  Blogs and websites have in many ways increased the ability of people to do research.  I'm glad that we are again part of the expansion of knowledge and debate.

I'll be signing autographs in the lobby at 6 pm!

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New ADA Regulations Re Service Animals - Part I

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If you read this blog, you know that I love service dogs.  Really I love almost all dogs, but the regal service dogs are beautiful animals and they really help many people with disabilities.

On September 15th the Department of Justice finalized new regulations concerning service animals under the Americans With Disabilities Act. These regulations take effect on March 15, 2011.  They pertain to Title II (governments, including schools) and Title III (public accommodations). Here is a summary by the Department of Justice.  Here is the printed version in the federal register (this works as a sleep aid as well.)  This is a highlight sheet of the changes to Title II.

Here is the definition of "service animal"

Service animal means any dog that is 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. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the handler's disability. Examples of work or tasks include, but are not limited to, 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 non-violent 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. 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. 

And here is the new regulation under Title II:

§ 35.136 Service animals

• (a) General. Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.
• (b) Exceptions. A public entity may ask an individual with a disability to remove a service animal from the premises if—
  • (1) The animal is out of control and the animal's handler does not take effective action to control it; or
  • (2) The animal is not housebroken.
• (c) If an animal is properly excluded. If a public entity properly excludes a service animal under § 35.136(b), it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises.
• (d) Animal under handler's control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e.g., voice control, signals, or other effective means).
• (e) Care or supervision. A public entity is not responsible for the care or supervision of a service animal.
• (f) Inquiries. A public entity shall not ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public entity may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).
• (g) Access to areas of a public entity. Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.
• (h) Surcharges. A public entity shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public entity normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.
• (i) Miniature horses.
  • (1) Reasonable modifications. A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
  • (2) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public entity shall consider—
    • (i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;
    • (ii) Whether the handler has sufficient control of the miniature horse;
    • (iii) Whether the miniature horse is housebroken; and
    • (iv) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
  • (C) Other requirements. Paragraphs 35.136 (c) through (h) of this section, which apply to service animals, shall also apply to miniature horses.  

Happy Columbus Day!

 

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Big Changes to §504: Do They Affect Special Education - Postscript Part III

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We recently finished a popular series on the recent changes to ╘504 as a result of the ADA amendments.  There was a lot of material and we have received a lot of favorable comments.  Thanks for reading and being interested.  

We often get great comments and emails concerning  our posts and this series was no exception.  Here is an example of a thoughtful comment by our new friend Jo Anne Simon:

Dear Jim:

I have to agree with Art Cernosia. I also agree with Professor Weber's prediction that §504 will be seeing more action because of the IDEA eligibility tightening. 

The sad truth is that public schools have long seen §504 and IDEA as the same thing and indeed the federal regulatory scheme for P-12 is similar to that of IDEA and often permitted the application  of similar eligibility criteria - even though they were never meant to be precisely the same.  §504 was always meant to cover a broader swath of children with disabilities, including those who needed less in the way of "special education" but more in the way of accommodations.  Just to confuse things, the IDEA and §504 shared terminology with some of the services/interventions that would not be required under 504, such as certain therapies.

The exhaustion requirement is also a significant barrier to a pure §504 claim.  However, a pure §504 claim does have its place.  For example, §504 would permit a claim against a physically inaccessible school environment.  That's not within the purview of impartial hearing officers to remedy.  Similarly, retaliation claims can proceed under §504.  Moreover, as more and more school systems declassify children for IDEA purposes and opt to serve them under §504 instead, those schools will be hard pressed to claim a failure to exhaust administrative remedies of a law by which the schools just said these children were not protected.  One can only talk from both sides of one’s mouth for so long...

Jo Anne
 

So what do you think?

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Tri-State Special Education Law Conference Next Stop on Gerls Rock Tour

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OK you cannot accuse me of not getting out there.  My Gerls Rock Special Education Law Tour 2010 has added one more stop.  As those of you who follow my tweets and mobile posts are aware, I will be addressing the Tri-State Regional Special Education Law Conference. It will be convening on November 4 and 5, 2010 in Omaha, Nebraska.

I have never spoken at this conference before, but I am really looking forward to it.   It is co-sponsored by the state departments of education for Kansas, Nebraska and Iowa as well as the Mountain Plains Regional Resource Center (or TAESE). It looks like a great conference.  I'm honored to be among the big names in the special education law field who will also be presenting at the conference.

Please look me up if you will be in the area.  I was lucky enough to meet a number of readers this summer.  Thank you for taking the time to tell me what you think about this blog.

One lawyer-type note/disclaimer.  None of the sponsors of the conferences I appear at necessarily endorse any of the opinions and thoughts expressed on these pages.  This blog represents my opinions and should not be attributed to any one else.  Fine print, maybe, but covering the bases is good policy.

I have not been to Nebraska for awhile.  I'm looking forward to it.  See you there!

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