Education Law Attack Sheet


FAPE must include: 1) public $; 2) state standards; 3) appropriate placement; 5) conform with IEPElig: Child w/ disability AND who by reason thereof NEEDS sped/related services.Disability: mental retardation; hearing impairments; deafness; speech or language impairment; visual impairments (including blindness); serious emotional disturbances; orthopedic impairments; autism; traumatic brain injury; other health impairments; specific learning disabilities; deaf-blindness; multiple disabilities.SPED: 1) specially designed instruction; 2) at no cost to parents; 3) to meet unique needs of childRelated Services: 1) Transp; 2) developmental; 3) corrective; 4) other supportive services as may be required to assist child to benefit from SPEDFAPE: Appropriate standard: Rowley (+ NCLB): reasonably calculated to achieve some ed benefit (meaningful)Level of access: IDEA requires states to: 1) develop plan approved by the fed gov; 2) agree they will meet needs of IEP kids; 3) follow procedural requirements.Hearing decisions standard: shall be made on substantive grounds unless: Procedural issues rose to level of a denial of FAPE b/c they 1) impede child’s right to FAPE; 2) sig impeded parents opportunity to participate in decision-making process; 3) cause ed dep benefits. Substantive issues result in denial of FAPE when LEA: 1) does not address student’s unique needs; 2) when the IEP is a) not calculated to provide some education benefit; 2) when the instruction & services do not comport with the IEP; 3) when placement is not in the LRELRE: removal from gen ed only when: 1) nature or severity is such that; 2) education in gen ed; 3) cannot be achieved satisfactorily with use of sup aids & services.Child find: 1) identify; 2) locate; 3) assess.Assessment: 1) in primary language; 2) validated; 3) trained personnel; 4) address specific areas of need; 5) observation; 6) no single procedure.Rowley (SC): Test: Did LEA comply w/ IDEA procedures?; Was IEP reasonably calculated to enable child to receive ed benefit? Some ed benefit.Adams v. Oregon: Ct applied “meaningful benefit” standard, rather than “some” education benefitT.R. v Kingwood Township (3rd): IEP must confer “meaningful ed benefit.” States must provide IEP that confers more than trivial or de minimis ed benefit; satisfactory IEP: “sig learning” & confer “meaningful benefit.”Eligibility & Evaluations: Rehab Act 1973 § 504: (can’t consider glasses)emphasis on equal access to ed, even if academic performance is satisfactory; must offer “reasonable accommodations” to disabled to ensure meaningful access but does not mandate “substantial” changes. Must strike balance b/w student rights & school legit financial & administrative concerns. § 504 Analysis: 1) Is this an essential requirement for the activity/program? (a) if yes, then is it reasonable; (b) consider financial or administrative burden?; 2) Whether change would fundamentally alter nature of activity, (a) if no, is child otherwise qualified (somehow make it so he is deemed to make it?); (b) if yes, if reasonable accommodations would enable him to meet requirement?. IDEA: reevaluate every three years (504 – before any sig placement change). IDEA procedural safeguards: written notice; parent’s dominant language; prior to initiation, change, refusal; identification, evaluation or placement; right to IEE at public expense. IDEA evals for eligibility: comprehensive; all areas of suspected disability; multidisciplinary team; not rely on one procedure. J.D. v Pawlet (2nd): IDEA: Academically gifted student not eligible for sped. §504 student may have claim even if academic performance is satisfactory, if student est that she does not enjoy equal access to school program. Seattle. v B.S. (9th): Dist failed to provide FAPE & to follow proper procedures. Dist to reimburse parents for cost of IEE and placement at out of state facility as well attny’s fees and costs. Schoenbach (D.C.): Ct recognized sig of evaluation in determining correct placement for student but refused reimbursement for private placement where the parents did not raise objections and concerns at the appropriate time.Hood v Encinitas S.D. (9th): Does not qualify for sped for “specific learning disability” or “other health impairments” b/c any existing severe discrepancy between ability and achievement appears correctable in gen ed. No services for optimal benefit .Pottgen (8th): 19 yr who was still in HS b/c of learning disability is not entitled to waiver of athletic association’s age eligibility requirements where rule was essential eligibility standard and waiver would constitute fundamental alteration in nature of program.Rothschild v Grottenhaler (2nd): 504: school must provide sign language interpreter services to hearing-impaired parents of nondisabled children for certain school-initiated meetings and activities. “Otherwise qualified individuals” are entitled to “meaningful access to” activities that school offers parents. FAPE: SPED Reform: Ed of Handicapped Act (1970); Sec 504 (1973); Ed for all Handicapped Children Act (1973); Rowley (1982); IDEA 1997; NCLB 2002; IDEIA 2004 NCLB: requires all students be proficient in reading/language & math by 2014; include 4 ed principles: stronger accountability for results, increased flexibility & local control, expanded options for parents, emphasis on scientifically based effective teaching methods. RTI: response to scientific, research-based intervention; schools not required to take into account a severe discrepancy b/w ability (IQ) & achievement when determining whether a student has specific learning disability. Funds: 15% of IDEIA funding can be used to develop & implement early intervention service; can be applied in the first tier of an RTI program; caution: children already IDed as special needs may not receive services funded by the 15%. Goals: quality gen ed instruction; prevent over-D for sped; continuous progress monitoring. Deal v Hamilton (6th): found $ primary motivating factor in D’s refusal to provide student with ABA intervention. Parent participation doesn’t just mean attending, means being heard and having opinions considered.N.B. v Hellgate (9th): 1997 IDEA Amnd requires dist. to provide student w/ “meaningful benefit. J.L. v Mercer Island S.D. (9th): applied “meaningful benefit” test. IDEA not simply about access; focus on transition services, outcome-oriented process that promotes movement from school to post-school activities, taking into account student’s preferences & interests. IEProgram. IEP Meeting: notice: early enough to ensure opportunity to attend; mutually agreed upon time & place. Transfer students proposal of IEP: no change to IEP, otherwise w/in 30 days if transferring w/in state; if transferring from out of state: w/in reasonable time; all: conform to current IEP to extent possible, unless assess or accept. IEP team considerations: pupil’s strengths, assessments results, standardized tests & grades, disability & affect on ed, needs, goals, placement, services, special factors. Ed Categories: gen ed (mainstreaming), resource specialist program, special day class, non-public school, day treatment, residential, state special school & specialized programs, home hospital instruction. IEP parent rights: meeting within 30 days of written notice (when IEP is in place), member excused if LEA & parent agree, if/when area of expertise not in discussion and/or provides written comments. IDEA Parent: Anatural, adoptive, or foster parent (unless foster parent is prohibited by state law from services as parent); A guardian (but not State if child is ward of State); An individual acting in place of a natural or adoptive parent w/ whom child lives, or individual who is legally responsible for child’s welfare; Ind assigned to be surrogate parent. White (5th): Dist has authority to decide hearing impaired child will attend centralized school rather than the neighborhood school requested by parents. IDEA does not explicitly require parental participation in site selection. “Educational placement,” as used in the IDEA, means educational program – not the particular institution where that program is implemented. Burilovich (6th): school may determine substantive program provided for child where procedures followed were appropriate. Shapiro (9th): Dist’s IEP decision as to where to place child will not be valid when IEP team is not properly constituted (no private school rep when that was where the kid attended school); parents held entitled to tuition reimbursement. Procedural flaws do not automatically require finding of denial of FAPE. But no FAPE for procedural inadequacies that result in loss of ed opportunity, or seriously infringe parent’s opportunity to participate in IEP formation process. LRE: Rachel H. (9th): Placement in full-day mainstream setting, with sup services appropriate. For LRE: ed benefits of placement full-time in gen-ed class; non-academic benefits; effect student has on teacher & children in gen-ed class (student disruptiveness, how much time teacher has to spend on this one particular child); costs of mainstreaming. Chula Vista: White: whether, for budgetary or other reasons, dist can centralize sped placement in one or more locations, rather than at every location in the dist; goes to the rule that dist may limit locations for certain sped services. CV: student must be in LRE, wherever the location may be. So, in CV, if gen ed class w/ supports was only implemented at a couple of dist schools, the dist could move student there but STILL had to place student in gen ed. Part C: Eligibility: services for children 0-3 who have disability. Referral Timeline: upon referral for Early Intervention Services (EIS), child must be evaluated, eligibility determined, and Individualized Family Service Plan (IFSP) developed w/in 45 days. Services: IFSP: for child & family; IFSP shall focus upon infant & family & shall include home visits, group services, family involvement activities; IFSPs include written “outcomes;” IFSP are reviewed every 6 mo, or more if requested; EIS designed to help families meet needs of infant/toddler & must be written in IFSP document, including frequency & duration of each service. Can include medically related services. Legal Standards: EIS must meet child’s developmental needs & be provided by qualified personnel. Contrast with Part B: Part C: no right to FAPE; no right to “free” services; services must be provided in “natural environments.” Transition: 2 -6 Meeting: When child 2 yrs 6 mo old, IFSP team must conduct IFSP review; law doesn’t require any transition steps at this stage so up to parents etc. When child is 2 yrs 9 mo old, IFSP team must conduct Transition Meeting. A dist rep must be invited but not required to attend. Related Services: Tatro (SC): 2 prong test: Is supportive service required to assist child to benefit from SPED?; Exception as medical service? (must be performed by a physician) To be entitled to related services, a child must be handicapped so as to require SPED. Only those services necessary to aid child to benefit from SPED must be provided, regardless how easily a school nurse or layperson could furnish them. Cedar Rapids v Garret F. (SC): Cost not factor when determining whether to provide related service. DP Hearings: Shaffer v Weast (SC): In DP hearings assessing appropriateness of IEP, the BOPersuasion falls on party seeking relief, typically parent. Forest Grove v T.A. (SC): IDEA permits tuition reimbursement where child has not previously received services from LEA. IEE: “Independent” means not an employee of dist, SELPA, or a consultant to the Dist. Reasons for IEE: address unanswered Qs, following Dist’s assessment; where assessment requires observation, IEE may provide valuable info concerning effectiveness of ed program & IEP implementation; level playing field, given “natural advantage” that dists have in info & expertise (Schaffer). When parents have right to IEE at public expense: must be in disagreement with dist. assessment; when dist fail to assess in all areas related to suspected disability; when dists conduct flawed assessments; as an equitable remedy. Criteria: must be same as used by dist; dist must provide info re agency criteria for IEEs re parent’s request for IEE. Selection of Evaluator: parent selects evaluator; policies generally inconsistent w/ parent’s right to an IEE:(1) prohibiting IEE evaluator’s association w/ private schools; (2) Requiring evaluator to have recent experience in public schools; (3) Dist may not restrict parent from selecting evaluator not on dist’s published list of approved assessors. Cost & Location: dist may est reasonable cost criteria; dist must provide advance funding for IEE if, w/o funding, parent’s right to IEE is effectively denied; parents not required to utilize private insurance to fund IEE; if out-of-dist location is necessary for assessment & justified by unique circumstances, dist must fund required travel expenses. Scope: limit of one dist conducted IE; IEE type include: assistive tech eval, funct behavior assessments, assessment of need for ESY service, oral motor skills & need for FAPE service; sensory processing as a component of OT Points to remember: Parents not required to give notice or express disagreement w/ dist’s evaluation prior to obtaining IEE; parents need not explain reasons for disagreement; parents not required to identify specific areas of disagreement with dist’s evaluation (and it is usually advisable not to do so). Dist’s Response to IEE Request: dist two choices: initiate hearing to show that its assessment is appropriate or provide IEE at pub expense. A dist must act without “unnecessary/unreasonable delay.” (3 months – Northern CA fed ct, 74 days – CA 2007 admin hearing decision, 4 weeks – CA 2001 admin hearing decision. Common Prob: dist responds to IEE request by proposing assessment plan; dist entirely ignores request; dist requests hearing to est appropriateness of its assessment; dist resists allowing indpt evaluator to conduct classroom observation. Discipline, Behavior Issues Under IDEA: Honig v Doe (SC): No dangerousness exception. Stay-put: prohibits dist from unilaterally excluding kid from classroom for dangerous or disruptive conduct b/c disability during pendency of all review proceedings unless parents & LEA mutually agree. For court to remove, dist must prove: substantially likely to result in injury to self or others; reasonable efforts made to minimize risk of harm, then order 45 day interim placement. Manifest Determination Hearing (emergency IEP): still must include parents & must be mutually agreed upon time & place. Removals: for not more than 10 days when child violate rules (esp defiance & disruption); step 2: hold an IEP meeting w/in 10 school days; IEP team must consider all relevant info, including IEP, any teacher observation, & info supplied by parents. Q for hearing: 1) was conduct caused by, or had direct & substantial relationship to disability? 2) was conduct direct result of LEA’s failure to implement IEP? (IEP assumes new imp so if school doesn’t include it in IEP, you’re sol). If yes to either: behavior manifestation of disability so can’t expel & should look to reasons to resolve them. If not, may discipline to same extent as any other student; still requires FAPE in new placement. Must: hold hearing w/in 10 consecutive days & each time LEA determines a series of removals constitutes a change in placement (adds up to 10 days & behavior is substantially similar to the behavior that resulted in previous removals, proximity of removals to each other). LEA deemed to have knowledge that the child is a child with a disability if referred for assessment but it hasn’t been completed (complete & see if it is b/c of a disability). But no LEA obligation if parent refuses eval, services or if evaluated & not eligible. Exceptions to stay put: weapons (1997); drugs (1997); serious bodily injury (2004). Still have hearing w/in 10 school days but kid can be at alternative placement for up to 45 days regardless of disability. Current placement: last agreed upon IEP – means parent has to sign. Change of placement: occurs after day 10 suspension or w/ actual change of placement. (2 track expulsion hearings). PWN (prior written notice): dist must give pwn to parents any time dist propose or refuse to change ed placement of student. Requirements: must include: 1) a description of action proposed or refused by agency, 2) an explanation of why agency proposes or refuses to take action; 3) description of each eval procedure, assessment, record, or report agency used as basis for proposed or refused action; 4) statement that parent have protection under procedural safeguards of this part &, if this notice is not an initial referral for eval, the mean by which a copy of description of procedural safeguards can be obtained; 5) sources for parents to contact to obtain assistance in understanding provisions of this part; 6) description of other options that IEP team considered & reasons why those options were rejected; 7) description of other factors that are relevant to agency’s proposal or refusal. FBA (functional behavior analysis): required when conduct is manifestation of disability AND change in placement exceeds or may exceed 10 days. Analyzes behavior & function (what is kid getting out of it?), recommends services to address behavior – parental consent is required: results in BIP or BSP. BSP: in conjunction w/ goals focusing on behavior or social/emotional needs, added to IEP, consider strategies, when behavior impedes learning to self or others. BIP: written doc; developed when behavior sig interferes w/ IEP implementation. Development includes IEP team & behavioral intervention case manager (BCIM) w/ documented training in behavior analysis & positive interventions & qualified personnel knowledgeable of student’s health needs. Plan shall include: objective & measurable description of the behavior & replacement positive behaviors, BIP goals & objectives, detailed description of behavioral interventions & circumstances, specific schedules for recording frequency of behaviors & intervention uses, criteria for fade out or less intense interventions, behavioral interventions for home, etc., specific dates for review: only implemented & supervised by staff w/ documented training, specified in IEP, shall be used in a systematic manner. Evaluation of effectiveness: baseline measure of frequency across multiple settings, people, times; measures of frequency, duration, intensity; documentation of program implementation; measures of program effectiveness reviewed by teacher, BCIM. BER (behavior emergency report): if LEA has to use more extreme emergency interventions for behavior = parents shall be notified w/in one school day “if appropriate.” Report maintained in file & include: name & age of student, setting & location of incident, name of staff & persons involved, description of incident & emergency intervention used, & whether there is a systematic BIP, details of any injury sustained by individual or others, including staff. Must be immediately sent & reviewed by a designated responsible administrator. If BIP not in place, w/in 2 days, schedule IEP meetings to determine need for an interim BIP. If not, dist. must document this in IEP notes. If BIP in place, see if behavior is new or if intervention in BIP is not effective – refer to IEP team to review BIP. Remedies: Burlington (SC): retrospective relief – tuition reimbursement. Est 2 prong test: did dist offer on IEP constitute FAPE? (If yes, then parents don’t get reimbursed). If no, then Q#2: does what parents chose constitute FAPE? (standard for parent is more did the child make some progress? Lower standard than for the Dist). Florence v Carter (SC): Absence of private school from state list of approved placements did not rule out reimbursement relief. Dists who want to avoid reimbursing parents for the private education can: (1) give child a FAPE in a public setting; (2) Place child in appropriate private setting of State’s choice. Winkelman (SC): Parents may pursue IDEA claims pro per, on their own behalf (have rights & claims ind of child). IDEA grants parents ind, enforceable rights, which are not limited to procedural & reimbursement-related matters but encompass the entitlement to a free appropriate public education for their child.

 

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