Special Education Smorgasbord 2014

1. Special Education Smorgasbord 2014 2014 MAASE Winter Institute Presented by LaPointe & Butler, P.C. Okemos, MI 48864 February 3, 2013

2. PART ONE ADA=504 Plus More

3. ADA Goes Beyond FAPE • One example we have already encountered=service animals • The latest encounter=CART (Communications Access Realtime Translation) • 9th Circuit Court of Appeals decision in two consolidated cases interpreting Title II of the ADA. See, K.M. v. Tustin Unified School District, and D.H. v. Poway Unified School District, 61 IDELR 182 (9th Cir., 2013)

4. Tustin and Poway • K.M. and D.H. both students with hearing impairments. • Parents in each case requested CART to assist student in following class discussion • CART is word-for-word transcription, similar to court reporting, that provides real-time captioning that appears on a computer monitor. • Districts denied, but offered other accommodations. Denial contested first in SE due process hearings, where districts prevailed (FAPE provided).

5. Tustin and Poway • On appeal of the administrative decision to federal district court, the parents asserted that denial of CART request violated both IDEA and Title II of the ADA. • In each case, the district court granted summary judgment to the school district, holding that the district had fully complied with IDEA and that the ADA claim was foreclosed by the failure of the parents’ IDEA claim.

6. Tustin and Poway • On appeal to the 9th Circuit, the parents did not dispute that the districts complied with IDEA, but asserted • that the ADA Title II imposes effective communication obligations on public schools • and that these obligations are independent of IDEA obligations • 9th Circuit agrees with parents and remands to federal district court for consideration of the merits of the ADA Title II claims.

7. Why? • Nothing in IDEA and ADA that would suggest a mechanical relationship such that satisfaction of IDEA automatically controls ADA result. • DOJ filed an amicus brief in Tustin in support of the parents’ interpretation of the relevant Title II regulations. The 9th Circuit is according deference to the agency which has the responsibility for implementing Title II.

8. Why?

9. Why?

10. PART TWO Emerging Trends with MDE and OCR

11. PART A MDE: Hot Topics

12. Hot Topic #1 Proposed MARSE Rules Package

13. MARSE Rules Package • MDE submitted new proposed rules package on December 10, 2013. • No dates set for public comment yet. MDE projecting February or March. Online public comment. • Why change? MDE says: • To align MI evaluation process with the process defined in IDEA. • To separate evaluation, determination of evaluation and development of IEP activities. • To clearly distinguish between procedures that must be followed for public school students and non-public school students. • To improve student outcomes and compliance by increasing focus on student evaluation.

14. Hot Topic #2 Lessons Learned from State Complaints

15. Trends – At A Glance * As reported by MDE at Fall Forum November 2013

16. 2012-2013 Top Ten State Complaint Issues • IEP Implementation • IEP Content • Discipline • Notice • Evaluations • Child Find, IEP Participants and Records • Independent Educational Evaluations • Behavior Intervention • Annual IEPs • Consent

17. Top 5 State Complaint Issues: Lessons Learned • IEP Implementation: • If you promise it, you must deliver it. • “As needed” without more is not sufficient. • Document! Document! Document! • IEP Content: • Measureable goals and objectives are: • based on data • aligned with the needs identified in the PLAAFP • Discipline: • Keep track of days of removals. • Conduct timely MDRs. • Provision of FAPE • IEP Team determines the IAES.

18. Top 5 State Complaint Issues:Lessons Learned, continued • Notice: • Should include those options considered but not selected by the IEP Team. • Reasons for refusal of requested service or program should be included. • Should be timely provided. • Evaluations: • No late evaluations. • Don’t take the “ostrich” in the sand approach. • Discuss and evaluate ALL areas of suspected disability. • Don’t ignore a verbal request for an evaluation.

19. PART B OCR(Cleveland): Hot Topics

20. OCR Jurisdiction • Title VI of the Civil Rights Act of 1964 • Title IX of the Education Amendments of 1972 • Section 504 of the Rehabilitation Act of 1973 • Age Discrimination Act of 1975 • Boy Scouts of America Equal Access Act of 2001

21. Again: It’s Not Just About Complying with §504 & the IDEA • By agreement with DOJ, OCR enforces Title II of the Americans with Disabilities Act (“ADA”) in the school context. • OCR processes complaints containing allegations that fall under both Section 504 and Title II of the ADA as dual Section 504/Title II Complaints. • To the extent that Title II standards provide greater protection than Section 504, OCR will apply those standards.

22. OCR HOT TOPIC # 1 Equal Access to Programs and Services

23. Tuition Enrollment Programs • Middle school student enrolls in neighboring district through tuition enrollment program for 2010-2011 school year. • February 2011, student evaluated and found IDEA eligible. • Per district policy, students with IEPs were not eligible for enrollment through tuition program. • March 2011, district notifies parent that, absent a cooperative agreement with resident district, student cannot continue enrollment. • Resident district would not agree to enter into cooperative agreement.

24. Tuition Enrollment Programs, cont. • District ultimately allows student to continue enrollment through tuition program, provided parent pays the requested tuition. • Parent refuses to pay tuition bill and files complaint with OCR alleging disability discrimination. • As a result of investigation, OCR determines: • District’s tuition enrollment policy discriminates against students with disabilities who have IEPs. • District’s asserted rationale failed to articulate a legitimate, nondiscriminatory reason for policy because: • District had already made exceptions to policy. • Michigan law does not mandate such a policy.

25. Tuition Enrollment Programs, cont. • To resolve OCR’s compliance concerns, the district agreed to: • offer tuition enrollment on the same terms it offered to students without disabilities. • revise its tuition enrollment policy to ensure an equal opportunity for students with disabilities to participate. • provide public notice of the revised tuition policy.

26. Some Thoughts on Implications • Be consistent in application of policies. • Be mindful of policies that limit or deny access of students with disabilities to programs and services. • Even if policy is not limiting or denying access solely because of disability, OCR may find policy discriminatory. • Reliance on state law is NOT an absolute defense to a disability discrimination claim, according to OCR. See also Lewis v Humboldt Acquisition Inc., 681 F3d 312 (6th Cir 2012).

27. OCR HOT TOPIC # 2 Personal Curriculum

28. U of M Research • Study requested by State Education Advisory Committee (SEAC) • Concern with number of calls from parents of students with disabilities regarding PC process and discrepancies with implementation

29. U of M Research – Implementation of Personal Curriculum

30. Let’s Look at the Data

33. OCR and PC: A Cautionary Tale • Student with learning disability and extensive absenteeism due to multiple heart surgeries having difficulties progressing in Michigan Merit Curriculum. • When he was in 9th grade, district moved student from diploma to certificate track • Staff thought about a personal curriculum but decided against because new and did not understand if could be used in this situation • Did some paperwork for homebound, but services were time-limited

34. A Cautionary Tale, continued • Fall-out • District staff did not really understand the consequences of certificate track as no clear State definition of requirements to complete it • By senior year student had 17 elective and 2 MMC credits • Parent filed complaint with OCR alleging that she was not informed that student placed on certificate track until student’s senior year • Sought readmittance to diploma track

35. A Cautionary Tale, continued • In taking the complaint, OCR determined • existence of “extraordinary circumstances” • that these circumstances justified the unusual step of exercising its jurisdiction to review the substance of the district’s placement decisions • As a result of its investigation, OCR concluded that the district had committed a number of 504/ADA Title II violations.

36. A Cautionary Tale, continued • To resolve OCR’s compliance concerns, the district agreed to: • 1.Consider whether students would benefit from a PC before determining that they be placed on a certificate track. • If at any stage it is determined that a SWD would not benefit from a PC, this determination is to be documented in the student’s educational file and communicated to the student’s parent/guardian within 15 school days from that determination.

37. A Cautionary Tale, continued • To resolve…the district agreed to: • 2.Conduct reviews of all SWDs placed on certificate tracks to ensure that not being denied an equal opportunity to participate in the diploma track, including • Consideration of the nature and severity of the student’s disability. • Documentation of the reasons why certain students are not being considered for diplomas. • Documentation of any services and modifications, such as PCs, to ensure SWDs are being given an equal opportunity to earn a diploma as appropriate.

38. A Cautionary Tale • To resolve…the district agreed to: • 3.Provide training to all district secondary school administrators, counselors, psychologists and school social workers regarding PC development for SWDs • 4.Offer the student the option to return to the district in its diploma track program, • including a reevaluation, revised IEP to address all academic areas and aids and services necessary for FAPE, including services to address disability-related absences, a new EDP and course plan, and a counselor convened PC team to determine if a PC can be developed for the student. • 5.Convene IEPT meeting to address comp ed.

39. Some thoughts re IEP processes • IEP invite notice of “course of study” discussion • IEP Prep= • Data for consideration of course of study • Information for processing course of study question • Diploma criteria • Default MMC • PC modification option • Certificate criteria • Notice of options considered and not selected relative to course of study

40. Some thoughts re PC processes • Decision rules are critical to PC decision making • Lack of decision rules affects • Staff • Students

41. Staff Impact • PCDT will get PTSD • PCDT decisions at risk of • Subjectivity • Inconsistency

42. Student Impact: • Under-granting diplomas • Barrier to completing Career Pathway • FAPE and equal opportunity issues • Over-granting diplomas • Graduation with regular high school diploma is eligibility terminating event • Due process hearing requests seeking comp ed

43. PART THREE IDEA Goes A Courting

44. PART A Guardianship Evaluation Requests and IDEA Reevaluations

45. What constitutes a reevaluation? • Any SE evaluation after the initial: • If the situation warrants, e.g., information needed for IEP revision, suspect another disability or that no longer special education eligible • Parent or teacher request • Limitation: may not occur more than once per year, unless parent and district agree otherwise • At least once every three years to assist in the redetermination of IDEA eligibility, unless the parent and district agree that a reevaluation is unnecessary

46. What evaluation requests would not constitute an IDEA reevaluation? • The evaluation is not for special education purposes, but rather for other agencies, institutions, or processes • Vocational rehabilitation agencies • Colleges and universities • Guardianship proceedings

47. USDOE discussion • “We do not believe that the [IDEA] regulations should require public agencies to conduct evaluations for children to meet the entrance or eligibility requirements of another institution or agency because to do so would impose a significant cost on public agencies that is not required by the Act.” • FR Vol. 71, No. 156, p.46644, column 3 (August 14, 2006).

48. The Guardianship Conundrum • School psychologist evaluations and testimony are frequently sought • regarding data required on the court form “Report to Accompany Petition to Appoint, Modify or Discharge Guardian of Individual with a Developmental Disability. • but report includes some areas of evaluation and/or opinion • outside of the scope of activities, including SE evaluations, authorized by federal, state and local special education funding sources. These authorities do not authorize/require SE evaluators to conduct Mental Health Code guardianship evals.

49. The Guardianship Conundrum • However, some information derived from a student’s special education evaluations may be pertinent to • A description of the nature and type of disability • Mental, social skills, educational, adaptive data, depending on the nature of the disability

50. PART B MI CASA & You