STUDENTS WITH DISABILITIES AND VOCATIONAL EDUCATION: BEST

PRACTICES FOR SERVING STUDENTS IN A COMPLIANT MANNER AND POSSIBLE

ENFORCEMENT ACTIONS

Jennifer Segal, Esq. jsegal@bruman.com Brustein & Manasevit, PLLC

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AGENDA Civil Rights Enforcement

U.S. Department of Education Office for Civil Rights

U.S. Department of Justices, Civil Rights Division IDEA Enforcement

Due Process Proceedings Case Studies: ensuring access to vocational

education programs for students with disabilities and appropriate IDEA transition activities

CIVIL RIGHTS ENFORCEMENT AGENCIES

• US Dept. of Education, Office for Civil Rights (OCR)

• US Dept. of Justice, Civil Rights Division (DOJ CRD)

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OFFICE FOR CIVIL RIGHTS (OCR)

Department of Education, Office for Civil RightsMission: “To ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights”

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OCR & CIVIL RIGHTS LAWS

1964: Title VI of the Civil Rights Act 1972: Title IX of the Education Amendments 1973: Section 504 of the Rehabilitation Act 1975: The Age Discrimination Act 1990: Title II of the Americans with

Disabilities Act 2002: Boy Scouts of America Equal Access

Act, ESEA § 9525

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OCR

Carries out mission through: Complaint Investigation and Resolution Proactive Enforcement: Compliance Reviews Monitoring of Resolution Agreements Technical Assistance

Affirmative Actions Required Data Collection Methods of Administration

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OCR ORGANIZATION Washington, DC Headquarters 12 Enforcement Offices

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US DEPARTMENT OF JUSTICE (DOJ)

Department of Justice, Civil Rights Division Mission is to uphold the civil and

constitutional rights of all Americans, particularly some of the most vulnerable members of our society

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DOJ CIVIL RIGHTS DIVISION

Enforces a broader range of statutes including: Title III of The Americans with Disabilities Act of

1990 Sections 504 and 508 of the Rehabilitation Act

of 1973 May enforce IDEA and Title II of the ADA

upon referral from other governmental agencies

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DOJ CIVIL RIGHTS DIVISION

Headquarters in Washington, D.C. Division is made up of 11 sections including

the Educational Opportunities and Disability Rights sections

Disability Rights Section Activities: Enforcement Certification Negotiated Rulemaking Coordination Technical Assistance

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OCR INVESTIGATION AND RESOLUTION: WHAT TO

EXPECT

CASE PROCESSING MANUAL (CPM)

Filing of the Complaint Investigation Early Complaint Resolution (ECR)

Mediation Process Mediators Independent of Investigation Outcomes:

Success ECR Agreement ECR not successful Return to Investigation

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WAYS TO RESOLVE AN OCR CASE

ECR Agreement Section 302 Resolution Agreement

Reached during Investigation No OCR determination

Investigative Determination Insufficient Evidence Determination Non Compliance Determination

304 Resolution Agreement Enforcement Action

Monitoring

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OCR CASE STUDIES

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ENSURING VOCATIONAL EDUCATION PLACEMENT IS APPROPRIATE AND

FAPE

OCR investigation: Nordonia Hills City School District, Office for Civil Rights, Midwestern Division, Cleveland, 55 IDELR 81 (March 18, 2010) Student enrolled in new neighborhood high

school at beginning of school year Already had an IEP upon enrollment Her schedule allowed for half the day at home

school and half the day at a career and technical education program center

IEP team did not consider what accommodations were necessary for the student’s participation in the CTE program

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NORDONIA HILLS CITY SCHOOL DISTRICT (CONT.)

OCR found District failed to comply with Section 504 because:

It did not reassess the student prior to her enrollment in the CTE program, which constituted a change in placement

Failed to hold an IEP meeting prior to enrollment in CTE program, invite CTE staff to IEP meeting, or consider what specific accommodations may be necessary for participation in CTE program

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NORDONIA HILLS CITY SCHOOL DISTRICT (CONT.)

OCR found District’s grievance procedures: did not include information on where complaints

may be filed did not provide for adequate, reliable, and impartial

investigation of complaints, including the opportunity to present witnesses and other evidence

did not provide for reasonably prompt timeframes for the major stages of the complaint process; and

did not indicate that it would provide notice to the parties of the outcome of the complaint

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APPLICABLE LEGAL STANDARDS (504 PLACEMENT DETERMINATIONS)

Section 504 places responsibility for ensuring FAPE on the School District

School districts must conduct an evaluation prior to any change in placement (34 CFR 104.35(a))

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APPLICABLE LEGAL STANDARDS (504 PLACEMENT DETERMINATIONS)

Placement determinations must be made by a group of people “knowledgeable about the child, the meaning of the evaluation data, and placement options” (34 CFR 104.35(c))

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APPLICABLE LEGAL STANDARDS (504 PLACEMENT DETERMINATIONS)

(CONT.)

Must draw upon information from a variety of sources, consider all significant factors relating to the learning process, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior (34 CFR 104.35(c))

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APPLICABLE LEGAL STANDARDS (NOTICE OF NONDISCRIMINATION/GRIEVANCE PROCEDURES)

Prior to the beginning of each school year, recipients must advise students, parents, employees and the general public that all vocational opportunities will be offered without regard to race, color, national origin, sex, or handicap

Include a brief summary of program offerings and admission criteria; also the name, address and telephone number of Civil Rights/Section 504 Coordinator

34 C.F.R. § 100, App. B (IV)(O)

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APPLICABLE LEGAL STANDARDS (NOTICE OF NONDISCRIMINATION/GRIEVANCE PROCEDURES)

The recipient must designate at least one person to coordinate efforts to comply with Section 504

The recipient must adopt grievance procedures that incorporate appropriate due process standards and provide for prompt and equitable resolution of complaints. 34 C.F.R. § 104.7

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BEST PRACTICES

Upon students enrollment in District, hold IEP/504 meeting as soon as possible Determine whether student’s placement

constitutes change in placement and whether reevaluations are required

Make sure staff who are knowledgeable about the student and proposed placement are invited and attend (involve all necessary parties in scheduling)

Ensure District’s notice of nondiscrimination/grievance procedures are compliant and available

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HARASSMENT BASED ON DISABILITY IN VOCATIONAL EDUCATION PROGRAMS

OCR investigation: Gilbert Public Schools, Office for Civil Rights, Western Division, Denver, 59 IDELR 84 (April 13, 2012). OCR found both District and CTE program

violated Section 504 CTE program administrators harassed District students

based on their disability, and the District failed to adequately redress the problem Technical school shut down a trade program only

after students with disabilities became the sole attendees

Unilaterally changed placement decisions for individual students with IEPs/504 plans

Made derogatory statements to students Retaliated against Complainant

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LEGAL REQUIREMENTS

When a District refers a student with a disability for services to an outside program, it continues to remain responsible for carrying out Section 504 requirements with respect to that student

Must ensure that nothing impedes 504 eligible students’ opportunity to equally participate in programs, activities, and benefits available to District’s other students

District has duty to investigate all 504 complaints

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LEGAL REQUIREMENTS: HARASSMENT BASED ON DISABILITY

OCR would find a disability-based harassment violation under Section 504 when:

(1) a student is bullied/harassed based on a disability; (2) the bullying/harassment is sufficiently serious to create a hostile environment;

(3) District/school officials know or should know about it; and

(4) the District/school does not respond appropriately.

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LEGAL REQUIREMENTS

Counselors must not direct or urge any student to enroll in a particular career or program, or measure or predict a student's prospects for success in any career or program based upon the student's race, color, national origin, sex, or handicap

Recipients may not counsel students with disabilities toward more restrictive career objectives than nondisabled students with similar abilities and interests

34 C.F.R. § 100, App. B (V)(B)

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LEGAL REQUIREMENTS: ANTI-RETALIATION

Recipients are prohibited from retaliating against any individual for the purpose of interfering with any right or privilege protected under Section 504. See 34 CFR 104.61

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BEST PRACTICES

Districts must maintain frequent communication with any outside placement (e.g., voc ed program, nonpublic placement)

Provide parents with copies of grievance procedures/notice of nondiscrimination upon enrollment/placement decision

Instruct program that disability discrimination, including harassment based on disability is prohibited

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BEST PRACTICES (CONT.)

Include contract provision/certification related to disability and other civil rights laws and require attendance at IEP /504 meetings

Review admissions practices and policies for compliance

DUE PROCESS UNDER IDEA

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DUE PROCESS COMPLAINTS

Allow parents/students to enforce the rights guaranteed under the IDEA Related to refusal or denial to initiate or change

the identification, evaluation, educational placement of the provision of a free appropriate public education (FAPE).

The alleged violation must have occurred within 2 years of the date of the complaint Some states have a 1 year statute of limitations

Each SEA must establish and maintain due process procedures

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LLCDUE PROCESS COMPLAINT TIMELINE

Day Event

Day 1 Parent files complaint

Day 10 School files answer

Day 15 School files allegations of insufficiency of complaint – if any

Resolution Meeting

Day 20 Hearing Officer will make determination on allegations of insufficiency – if any

Day 30 End of resolution period – if complaint has not been resolved hearing goes forward

5 days prior to hearing date 5-day disclosures due

Day 45 Hearing Officer Decision issued

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LLCRESOLUTION MEETINGS

Must occur within 15 days of notice of complaint. Attorney for the LEA cannot attend unless parent’s attorney

is also present If after reasonable efforts (documented), the LEA is unable to

obtain the participation of the Parent, the LEA may (at the end of the 30-day period), request that the hearing officer dismiss the parent’s due process complaint!

If LEA fails to schedule a resolution meeting, parent can ask for intervention!

Meeting notes are not confidential

Settlement agreement can be voided up to 3 days after it is signed

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MEDIATION

Available for matters arising prior to or after the filing of due process complaint Not limited to issues raised in due process hearing; may

mediate any point in the dispute

Mediation is CONFIDENTIAL!

LEA cannot require mediation SEA responsible for selecting mediators, and it must be

on a random, rotational, or other impartial basis [ED does] not believe that a hearing officer can order

that the parties to a due process complaint engage in mediation.” (71 Fed. Reg. 46694 (Aug. 14, 2006))

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HEARING OFFICER DETERMINATIONS

What relief can be granted when a FAPE violation is found?

Courts have broad discretion in fashioning relief for violations of the IDEA.  Burlington Sch. Comm. v. Dept. of Educ., 471 U.S. 359 (1985)  Hold meetings Evaluations Placement

Private Schools Residential

Compensatory Education Tutoring Job coach Credit recovery

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LLCATTORNEYS’ FEES

Attorneys’ fees and related costs may be awarded to “Prevailing Party”

However, Attorneys' fees may not be in any action for services performed subsequent to the time of a written offer of settlement to a parent if--

The offer is timely made The offer is not accepted within 10 days; andThe court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.

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DUE PROCESS CASE STUDIES

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LLCIDEA CASE STUDIES AND TRANSITION SERVICES

Quick Refresher Transition services under IDEA means a

coordinated set of activities for a child with a disability that is – a results-oriented process focused on improving academic and functional

achievement to facilitate movement from school to post-school activities:

including postsecondary education vocational education integrated employment (including supported employment) continuing and adult education adult services independent living or community participation

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QUICK REFRESHER (CONT.)

Is based on individual needs, taking into account, strengths, preferences, and interests and includes: Instruction related services community experiences development of employment and other post-school

adult living objectives, and (if appropriate) acquisition of daily living skills and

provision of a functional vocational evaluation. may be special education or an a related

services.

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The IEP must include: 1. Appropriate measurable postsecondary goals

based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills

2. The transition services (including courses of study) needed to assist the child in reaching those goals

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IDEA CASE STUDIES

Transition planning must address community living needs. Horizon Instructional Systems Charter School, 58

IDELR 145 (SEA CA 2012): “An LEA is not required to guarantee that a student

with a transition plan actually obtains a job in the community. However, in an appropriate case, an LEA must, as a transition service, ‘facilitate the movement’ of a disabled student to ‘integrated employment, including supported employment. . .’”

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IDEA CASE STUDIES

Horizon Instructional Systems Charter School (Cont.): Hearing officer found denial of FAPE because student’s

transition plan failed to address needs for: Independent living skills (inadequate assessment –

not clear if student could write a check, make change, etc.)

Mobility training (student relied on parent for transportation, lacked goal in mobility, when goals was finally added, involved printing a bus route from a different neighborhood)

Community and employment experience (mock job or a simulation on campus was not sufficient )

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IDEA CASE STUDIES

Transition planning must address community living needs. Dracut School Committee v. Bureau of Special

Education, 737 F.Supp.2d 35 (D. Mass 2010): Court found denial of FAPE because the IEP did not provide for any vocational training opportunities in the community. School internships on campus were not sufficient

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IDEA CASE STUDIES

Student’s absence does not justify insufficient transition services: Reynolds School District, 115 LRP 3792 (OR SEA

2014): Hearing officer found that “a student’s absence [during assessment periods] does not constitute a good reason for failing to engage in transition planning as transition assessments are informal assessments that can happen any time based on student availability”

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BEST PRACTICES Create transition services template for IEP

team which addresses each required element: Instruction, related services, community experiences,

development of employment and other post-school adult living objectives, and (if appropriate) acquisition of daily living skills and provision of a functional vocational evaluation

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BEST PRACTICES (CONT.)

Provide training on use of template Take detailed notes as to why each transition service was selected – which goals will each service help to advance? How were the particular goals identified/drafted? Prior to concluding each IEP meeting, ask parent/student if they have any questions/concernsDocumentation

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IDEA CASE STUDIES

Reasonable accommodations vs. fundamental or substantial modifications G.B.L. v. Bellevue School District, 2013 WL

594289 (W.D. Wash. 2013): Court found that parent’s request to limit a student’s

(with AHDH) homework to two hours per night was not reasonable. Noting that the assigned homework was an essential component of coursework in the gifted program and the student would be unable to keep up with class discussions if homework was limited

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LLCUNDUE BURDEN OR FUNDAMENTAL ALTERATION Providers must take those steps necessary to

ensure that students with disabilities are not denied services or excluded because of the absence of auxiliary aids and services

UNLESS taking those steps would fundamentally alter the nature of services or program or would result in an undue burden Undue Burden = significant difficulty or expense*See Supplemental Educational Services Non-Regulatory

Guidance (June 13, 2005)

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BEST PRACTICES Hold IEP meeting to discuss any questions

regarding appropriateness of requested accommodations/modifications

If accommodations/modifications denied, provide written explanation as to why accommodation would require a fundamental or substantial modification to program/standards – provide prior written notice!

Brainstorm alternative accommodations

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DISCLAIMER

This presentation is intended solely to provide general information and does not constitute legal advice. Attendance at the presentation or later review of these printed materials does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.