THE NEW IDEIA(the Individuals with Disabilities in Education Improvement Act of 2004)

2005 - PASA Workshopspresented by

Donna S. Weldon, Esq. and Stinson W. Stroup, Esq.

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New Mission

Discrimination model Access, accountability, now achievement Alignment with NCLB Research-based methodology

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Pennsylvania’s Unique Problems

Chapter 14 incorporates by reference existing federal regulations

Conflict with IDEIA – Not permitted State exceeds IDEIA requirements -- OK

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Research-Based Methodology –New Battleground

New burden of proof for district IEP includes

– A statement of special education and related services based on peer-reviewed research to the extent practicable, to be provided to the child

(20 USC § 1414(d)(1)(A)(i)(1)(iv))

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Interaction with NCLB

LRE-separation occurs only when nature or severity of disability is such that education in regular education classes, with the use of supplementary aids and services, cannot be achieved satisfactorily

LRE in the context of challenging standards and achievement testing and subsets

Alternate assessments – separate standards What about Gaskin?

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Procedural Safeguards-Evaluation

Initial placement refused by parents No complaint may be filed by district Refusal of consent to services – defense for

district and no need to convene IEP team or write IEP

60 calendar day timeframe for evaluation from parental consent

Distinguish screenings to determine instructional strategies for curriculum implementation

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Procedural Safeguards-Evaluation cont’d

Maximum number 1x per year unless agreed to; minimum 1x every three years

Response to Intervention v. Discrepancy Model

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Procedural Safeguards-Evaluation cont’d

Graduation – no longer eligible No evaluation Summary of performance

– Academic achievement– Functional performance– Recommendation: postsecondary goals

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Procedural Safeguards-IEP

Elimination of benchmarks or short-term objectivesException: students taking alternative

assessments How progress will be measured and when

periodic reports

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IEP

Educational performance now academic achievement and functional performance

Measurable goals now academic & functional Services based on peer-reviewed research Accommodations to measure achievement on

state & district-wide assessments Why alternative assessment Guidelines for accommodations & alternative

assessments

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First IEP In Effect When Child IsAge 16

Measurable postsecondary goals Age-appropriate transition assessments

(training, education, employment or independent living skills)

Transition services (including courses of study)

One year before majority, child informed of rights

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Procedural Safeguards-New Flexibility

Team member attendance/excusal– Parent agrees in writing– Not being discussed or modified– Member’s written input before meeting

IEP amendment by agreement without meeting/redraft

Pilot program Conference calls as alternative to meetings Email communication

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Procedural Safeguard Notices(How Often and New Contents)

Only 1x per year First occurrence of filing complaint Parent requests Notice of disciplinary change of placement

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ComplaintNew Process to Reduce Litigation

Two-year statute of limitations from date knew or should have known unless mitigating circumstances

Complaint must state following information:– Nature of problem relating to proposed

initiation or change– Facts relating to problem– Proposed resolution

SEA to develop model complaint form

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ComplaintNew Process to Reduce Litigation, cont’d

Right to object to complaint as insufficient within 15 days

Within 5 days of receiving objection to complaint, hearing officer renders decision

District responds with notice within 10 days

Non-complaining party within 10 days sends answer addressing problems

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ComplaintNew Process to Reduce Litigation, cont’d

Amended complaint notice if agreed to or permitted by Hearing Officer

May raise no issue not in complaint

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District Written Prior Notice to ParentOr Response When Propose or Refuse to Initiate or Change Description of action Explanation of why propose or refuse Description of evaluation, assessment, record to

support decision Procedural safeguards notice Sources for parental assistance Description of other options considered and why

rejected Factors relevant to proposal or refusal

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Resolution Session (NEW)Kinder, Gentler, Due Process

Required meeting Within 15 days of receipt of parents’

complaint Discussion of complaint to try to resolve

complaint Representative of district with decision-

making authority No attorney unless parents have attorney

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Resolution Session (NEW), cont’d

Timelines for due process hearing commence within 30 days of receipt of complaint

Settlement agreement-either party may void within 3 business days

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Discipline-Greater Discretion for Schools

New Manifestation Determination New 45 School Days for IAES New Unilateral Placement for Serious

Bodily Injury Limitations on Child Not Yet Identified Stay-Put for all disciplinary placements

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Manifestation Determination Review Conducted by relevant members of IEP

team Relevant members determined by parent

and LEA To determine if misconduct

– Was caused by, or had a direct and substantial relationship to disability, or

– Was the direct result of failure to implement IEP

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IAES/Special Circumstances

45 school days replaces calendar days Placement without regard to manifestation

determination New special circumstances of “has

inflicted serious bodily injury”

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IAES/Special Circumstances, cont’d

Serious Bodily Injury:– Substantial risk of death,– Extreme physical pain,– Protracted and obvious disfigurement, or– Protracted loss or impairment of the

function of a bodily member, organ, or mental faculty

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Requirements of Deemed to Know

Parent in writing to supervisor, administrator or teacher of need for special education or requested evaluation

Teacher or provider expressed specific concern about pattern of behavior directly to director of special education or appropriate supervisor

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No Knowledge if:

Parent has not allowed evaluation Refused services Evaluation conducted and no disability

found

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Expanded Stay-Put

Parents appeal disciplinary placement or manifestation determination

During pendency of proceedings, child remains in the IAES

Does not need to be special circumstances

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Highly Qualified (“HQ”)-- In General (section 602. Definitions)

Same meaning as NCLB But also includes full special education

certification (except charter school teachers may meet state charter school law certification requirements).

No emergency, temporary, or provisional waiver

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HQ: Special Education Teachers teaching to alternative standards

Exclusively to students assessed against alternative achievement standards (1%)– Meet NCLB new or not new criteria;

or

– Elementary teacher criteria and

If content is above elementary level, demonstrate subject matter knowledge as determined by State

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HQ: Special Education Teachers Teaching multiple subjects Meet the requirements of NCLB for any elementary,

middle or secondary school teacher who is new or not new to the profession

If not new- demonstrate competence in all core academic subjects in same manner as required for a elementary, middle or secondary teacher (may use HOUSSE)

If new and highly qualified in math, language arts or science may demonstrate competence in other areas in same way as required for elementary, middle or secondary teacher (may use HOUSSE) within 2 years.

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HQ: How this will play out in Pennsylvania, we think,

Current teachers: 1) Certified special education teachers are

highly qualified as assigned to provide support

2) Certified special education teachers teaching content at any level will have to demonstrate content proficiency in some way

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HQ: currently teaching to elementary PSSA

Hold a valid Instructional I or Instructional II certificate

Have taught elementary content May use Bridge II to become highly qualified for

elementary education– Transcript review

or– Praxis test of Fundamental Subjects content

knowledge (met by all certified after 1987)

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HQ: Currently teaching to alternate assessment

Meet same requirements as teachers of elementary content.

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HQ: Currently teaching content to middle-secondary PSSA

Hold a valid Instructional I or Instructional II certificate

Hold a content area certificate or enter Bridge I in order to earn a content area certificate. (Can earn content area certificate by passing relevant Praxis).

Enter Bridge II for additional endorsements to become highly qualified in additional subjects

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HQ: Bridge I (see www.pde.state.pa.us)

Bridge requirements (Pa’s HOUSSE)– Full time teaching– Instructional I or II issued before July 1, 2004– Currently assigned to core content for which not

Highly Qualified– Earn 12 points for experience to get on Bridge– Earn 18 additional points within next 3 years

Can avoid Bridge I by passing relevant content area Praxis to earn content certificate in second area

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HQ Bridge II (see www.pde.state.pa.us)

Getting on Bridge II– Teacher of multiple subjects in self-contained

classroom at some time since 2000-2001 school year

– Has a content area certificate (can be obtained through traditional means, by passing relevant Praxis, or by Bridge I).

– Meets experience requirements to get on Bridge I– Demonstrates satisfactory performance evaluations

using PDE approved form

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HQ: Bridge II (cont)

Getting off Bridge II with designations– Teacher must have earned at least three college

credits in content area and

– Pass praxis test of Fundamental Subjects: Content Knowledge or Elementary Education Content Knowledge

or – if pre-1987 certificate holder, document successful

teaching of content for at least one full year.

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HQ: Certification v. Designation

Bridge I results in a certificate Bridge II results in a designation of “highly

qualified” Holder of certificate can teach subject in

any setting Holder of designation is highly qualified to

teach subject only within scope of his or her certificate

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HQ: legal effect

Holder of certificate can be assigned to teach within the scope of certificate without penalty.

If not highly qualified, district must notify parents of students assigned to that teacher that he or she is not highly qualified.

No “right of action” created by failure of employee to be highly qualified

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HQ: Pipeline still a problem

If new and highly qualified in math, language arts or science may demonstrate competence in other areas in same way as required for elementary, middle or secondary teacher (may use HOUSSE) within 2 years.

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Early Intervening Services

Unidentified students who need additional academic and behavioral support

Professional development to enable– Scientifically-based academic instruction– Behavioral interventions, including scientifically-

based literacy instruction Educational & behavioral evaluation, services

supports, including scientifically-based literacy instruction

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Children Who Transfer School DistrictsWithin Same Academic Year

Within PA FAPE, comparable

services to previous IEP Consultation with parents Until adopts previous IEP

or adopts new IEP Move promptly to obtain

records

Outside PA Same, except conduct an

evaluation

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Equitable Participation

IU subgrantee responsibilities Written affirmation of input from private

schools/parents on child find, determination of funding, participation in services

How, where, and by whom services will be provided

Explanation of reasons for refusing services Private school may file complaint with SEA Appeal to OSEP

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Odds and Ends

Prohibition on mandatory medication “Part ‘C’ IEP transition – invite service

representative” New restrictions on hearing officer’s use

of procedural violations Gifted special education Hostile parent

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Compensatory Education

Knows or Should Have Known IEP Failed Money to Buy Developmental, Remedial

or Enriching Instruction Compare Tuition Reimbursement

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Compensatory Education, cont’d

Peer-reviewed research basis for methodology Measurement of progress/academic achievement

– impossible to assess programs FBA/BIP Failure to implement Identified Needs Not Addressed in Goals,

Benchmarks

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Compensatory Education, cont’d

No Instruction Only Accommodation Failure to Implement SDI’s, Consultation,

Related Services Failure to Identify or Evaluate Parent Request Ignored

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Compensatory Education, cont’d

Calculation of Damages Number of Hours Missed Service Number of School Days Salaries and Benefits (Actual/Median) Poison the Entire Day?

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Court Award of Attorneys Fees Against parents attorney if-

– Frivolous, Unreasonable, or Without Foundation(F, U, WF) Complaint

– Continues to litigate afterBecomes clear F, U, WF

Against attorney or parent if-– Complaint was presented to harass, cause

unnecessary delay, or needlessly increase cost of litigation

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Due Process Complaint NoticeService to Other Party & ODRIdentifying Information; and

Description of Problem re: Proposed Change or InitiationProposed Resolution

Within 15 days of receipt Within 10 days of receipt

Objection to SufficiencyService to other party & H.O.Failure to meet notice reqs.

District’s ResponseIn lieu of prior written notice• why district proposed or refused action• other options considered• why objection rejected• description of evaluation, assessment record used as basis• description of relevant factors

Does not preclude objection

Within 5 days of receipt

Determination of Sufficiency ofD.P. Complaint Notice

Amended Complaint NoticeOther Party Consents & Opportunity for MtgH.O. Permits More Than 5 Days Before Hrg.

Timeline Recommences When File Amended Notice

Non-Complaining PartyResponse Address Issues Raised in Complaint

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Due Process Complaint NoticeService to Other Party & ODRIdentifying Information; and

Description of Problem re: Proposed Change or InitiationProposed Resolution

Within 15 days of receipt Within 30 days of receipt

Resolution SessionLEANo solicitor unless parent has attorneyDiscussion by parent of complaint & factsDistrict opportunity to resolveDistrict & parent must waive in writing or agree to mediation to avoidWritten settlement agreement

Due Process HearingLimited to issues in noticeNo FAPE based on procedural flaws only if defects:• impeded child’s right to FAPE• impeded parent’s right to participate in decisions• caused deprivation of benefit

Within 3 Business Days of Agreement Execution

Either Side May Void

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Donna S. Weldon, Esq.Keefer Wood Allen & Rahal, LLP

210 Walnut Street

P.O. Box 11963

Harrisburg, PA 17108