IDEA 2004: Evaluations, IEPs, Teachers & Private Schools

1. IDEA 2004: Evaluations, IEPs, Teachers & Private Schools Tim Sindelar 22 Putnam Avenue Cambridge, MA 02139 617- 871-2140

2. Changes to Congressional Findings • Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by • (A) having high expectations for such children and ensuring their access in the general curriculum to the general education curriculum in the regular classroom, to the maximum extent possible, in order to— • (i) meet developmental goals and, to the maximum extent possible, the challenging expectations that have been established for all children; and • (ii) be prepared to lead productive and independent adult lives, to the maximum extent possible • providing incentives for whole-school approaches, scientifically based early reading programs, positive behavioral interventions and supports, and early intervening services to reduce the need to label children as disabled in order to address the learning and behavioral needs of such children

3. Changes to Congressional Findings • Added a finding that “parents and schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways” • Added a finding that “teachers, schools, local educational agencies and states should be relieved of irrelevant and unnecessary paperwork burdens that do not lead to improved educational outcomes.” • Added a finding that “as graduation rates for children with disabilities continue to climb, providing effective transition services to promote successful post-school employment or education is an important measure of accountability for children with disabilities.”

4. Change to “purpose” of Act • The purpose of IDEA is to ensure that all children with disabilities have available to them a free and appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living

5. Key Definition Changes • Assistive technology devices • Highly qualified teachers • Specific Learning Disability • Homeless children • Parent • Related Services • Transition Services • Universal Design • Ward of the State

6. Assistive technology devices (Section 602(1)) • Retained the definition of assistive technology device but inserted the following exception “The term does not include a medical device that is surgically implanted, or the replacement of such device.”

7. HOMELESS CHILDREN (Section 602(11) • The term “homeless children” is added by reference to Section 725 of the McKinney-Vento Homeless Assistance Act

8. PARENT (Section 602(23)) • The statutory definition of the term “parent” includes several modifications: • A natural, adoptive, or foster parent of a child (unless a foster parent is prohibited by state law from serving as a parent), • A guardian (but not the state if the child is a ward of the state), • An individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare • an individual assigned to be a surrogate parent

9. Surrogate Parent • for a child who is a ward of the State, a surrogate may be appointed by the judge overseeing the child’s care provided that the surrogate meets the requirements • for an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(6)), the local educational agency shall appoint a surrogate in accordance with this paragraph. • The State shall make reasonable efforts to ensure the assignment of a surrogate not more than 30 days after there is a determination by the agency that the child needs a surrogate

10. RELATED SERVICES (Section 602(26)) • The statutory definition of the term “related services” includes the following additions: “interpreting services” and “school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the IEP of the child.” • The following exception is included: “The term does not include a medical device that is surgically implanted, or the replacement of such device.” • The conference report clarified that the conferees intend that related services include “travel training instructions.” – in regulations as orientation and mobility services

11. TRANSITION SERVICES - Section 602(34) • Deleted “student” and inserted “child”. • Deleted “outcome oriented” and inserted “results-oriented”. • Clarified that the result-oriented process is “focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s” movement from school to post-school activities, including vocational education (instead of training). • Recognized the need to take into consideration the child’s “strengths.”

12. UNIVERSAL DESIGN (Section 602(35)) • The term “universal design” means a concept or philosophy for designing and delivering products and services that are usable by people with the widest possible range of functional capabilities, which include products and services that are directly usable (without requiring assistive technologies) and products and services that are made usable with assistive technologies.”

13. Highly qualified teachers • When used with respect to any public elementary school or secondary school special education teacher teaching in a state, such term means that: • The teacher has obtained full state certification as a special education teacher (including certification obtained through alternative routes to certification), or passed the state special education teacher licensing examination, and holds a license to teach in the state as a special education teacher, except that when used with respect to any teacher teaching in a public charter school, the term means that the teacher meets the requirements set forth in the state's public charter school law; • The teacher has not had special education certification or licensure requirements waived on an emergency, temporary or provisional basis; and • The teacher holds at least a bachelor's degree. • [602(10)(B)] of IDEA.

14. Highly Qualified -- NCLB 20 USCA § 6319(a) (1) • Beginning with the first day of the first school year after January 8, 2002, each local educational agency receiving assistance under this part shall ensure that all teachers hired after such day and teaching in a program supported with funds under this part are highly qualified. • Instruction in core academic subjects (English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography) must be presented by highly qualified teachers by the end of the 2005-2006 school year.

15. MA DOE Policy re “Highly Qualified” • http://www.doe.mass.edu/nclb/news03/hqtr_faq.html • Certification component - any level of Massachusetts' licensure - preliminary, initial or professional ; • Subject Matter Competency component - NCLB requires a teacher to have demonstrated "a high level of competency in each of the [core] academic subjects" in which he or she teaches -districts may define this for their employees - however, to the law specifically states "equivalent to a major”

16. Subject Matter Competency • elementary teachers can demonstrate subject matter competency through National Board certification • a Master's degree in Education does not count toward demonstrating subject matter competency • elementary certified teachers who teach a core academic subject at the middle school level can demonstrate subject matter competency through an individual professional development plan

17. Highly qualified teachers –alternate achievement standards • When used with respect to a special education teacher who teaches core academic subjects exclusively to children who are assessed against alternate achievement standards established under the regulations promulgated under Section 1111(b)(1) of ESEA, such term means the teacher, whether new or not new to the profession, may either: • Meet the applicable requirements of Section 9101 of ESEA for any elementary, middle or secondary school teacher who is new or not new to the profession; or • Meet the requirements of Section 9101(23)(B) or (C) of ESEA as applied to an elementary school teacher, or, in the case of instruction above the elementary level, has subject matter knowledge appropriate to the level of instruction being provided, as determined by the state, needed to effectively teach to those standards. 602(10)(C)

18. Highly Qualified Teachers – HOUSSE • Proposed regulations add: • (A) Receives high-quality professional development that is sustained, intensive, and classroom-focused in order to have a positive and lasting impact on classroom instruction, before and while teaching; • (B) Participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for teachers or a teacher mentoring program; • (C) Assumes functions as a teacher only for a specified period of time not to exceed three years; and • (D) Demonstrates satisfactory progress toward full certification as prescribed by the State; and • (ii) The State ensures, through its certification and licensure process, that the provisions in paragraph (b)(2)(i) of this section are met.

19. Highly Qualified – No private enforcement? • Notwithstanding any other individual right of action that a parent or student may maintain under this part, nothing in Section 612(a)(14) of IDEA shall be construed to create a right of action on behalf of an individual student for the failure of a particular SEA or LEA staff person to be highly qualified, or to prevent a parent from filing a complaint about staff qualifications with the SEA as provided for under this part. [612(a)(14)(E)] of IDEA.

20. IEP Changes • Changes regarding present levels of educational performance • Changes regarding assessments in the IEP • Changes to annual goals • Changes to measuring progress and reporting • Changes to statement of services • Rule of construction

21. Changes to measuring progress and reporting • IEPs are required to include: • A description of how the child's progress toward meeting the annual goals will be measured; and • A description of when periodic progress reports will be provided to the parents. • Reporting may include: • Quarterly reports; or • Other periodic reports concurrent with issuance of report cards. 614(d)(1)(A)(i)(III)

22. Changes regarding present levels of educational performance • IEPs must include: • Present levels of academic achievement and functional performance; and • A statement of measurable annual goals, including both academic and functional goals • IDEA requires benchmarks, or short-term objectives only for children who take alternate assessments aligned to alternate achievement standards – BUT MADOE REGULATIONS CONTINUE TO REQUIRE BENCHMARKS FOR ALL IEPs 614(d)(1)(A)(i)(I)

23. Changes regarding assessments in the IEP • A statement of any individual appropriate accommodations that is necessary to measure: • Academic achievement and functional performance on statewide and districtwide assessments. • If the IEP team determines that the child will take an alternate assessment, a statement must be provided that indicates why the IEP team selected a particular alternate assessment, and why it is appropriate for the child. 614(d)(1)(A)(i)(VI)(aa), (bb)(BB)

24. Changes to annual goals • IEPs are required to include: • A statement of measurable annual goals, including academic and functional goals. • [614(d)(1)(A)(i)(II)]

25. Changes to statement of services • Adds that: • special education and related services and supplementary aids and services be based on peer-reviewed research, to the extent practicable. 614(d)(1)(A)(i)(IV)

26. Rule of construction • Nothing in Section 614 shall be construed to (1) require that additional information be included in a child’s IEP beyond what is explicitly required in Section 614, or (2) require the IEP team to include information under one component of a child’s IEP that is already contained under another component of such IEP. [614(d)(1)(A)(ii)]

27. Transition Change in Definition of Transition Services • The term “transition services” means a coordinated set of activities for a child with a disability that: • Is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s 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; and [602(34)(A)] • Is based on the individual child’s needs, taking into account the child’s strengths, preferences and interests. [602(34)(B)]

28. Transition – Changes to IEP Requirements • Beginning not later than the first IEP to be in effect when the child turns 16 and then updated annually thereafter, the IEP must include: • Appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment and independent living skills, where appropriate; • Transition services needed to assist the child in reaching those goals, including courses of study; and • Beginning not later than one year before the child reaches the age of majority under state law, a statement that the child has been informed of the child’s rights under this title, if any, that will transfer to the child on reaching the age of majority under Section 615(m). 614(d)(1)(A)VIII

29. Overview of Significant Changes to Due Process Procedures • Complaint Notice • Resolution Process • Due Process Hearings • Attorney’s Fees • Student Discipline

30. Complaint Filing • Request for Hearing = Complaint • Party filing the Complaint must address it to the Respondent (school district) with a copy to the Bureau of Special Education Appeals. • Timelines for response and resolution efforts begin when the Respondent receives the complaint notice.

31. Complaint • Must contain all of the following: • A description of the nature of the problem with relevant facts; and • A proposed resolution of the problem to the extent known and available to the Petitioner at that time. • Complaint must allege that a “violation” occurred within the applicable two (2) year statute of limitations. * Issues not raised in original Complaint cannot be raised at hearing without consent of other party

32. Exceptions to 2 year SOL • (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or • (ii) the local educational agency’s withholding of information from the parent that was required under this part to be provided to the parent • 615(f)(3)(D)

33. Complaint Notice • Upon receipt of a Complaint, IDEA 2004 requires that the school district immediately send to the parents: • A notice of procedural safeguards • A list of any free or low cost legal and other relevant services available in the area.

34. Response to Complaint • Within 10 days of receiving the Complaint, the respondent must send a written response (Answer) to the Petitioner and the assigned Hearing Officer.

35. Response to Complaint: 2 Types • Simple Response • Detailed Response

36. Simple Response • To be used by Parent/Student where the school district is the moving party; and by school districts that have already provided prior written notice regarding all of the issues raised in the Complaint • General response to each of the issues raised in the complaint • Even the simple response should be more detailed than a standard answer to a civil complaint

37. Detailed Response • Must include: • An explanation of why the District proposed or refused to take any action raised in the complaint; • A description of other options the Team considered and why they were rejected; • A description of each evaluation procedure, assessment, record, or report the District used as the basis for the proposed or refused action; and • A description of factors relevant to the district’s proposal or refusal to act.

38. Deficient Complaint • Objections to the sufficiency of the Complaint must be filed with the Hearing Officer within 15 days of receiving the Complaint Notice. • Complaint will be deemed sufficientunless the receiving party files a written “notification” alleging that the complaint notice is insufficient.

39. Objection to a Deficient Complaint • Within 5 days of receiving an objection to the sufficiency of the complaint, the Hearing Officer shall make a determination on the face of the notice whether the complaint notice meets the statutory requirements, and shall notify the parties in writing of such determination.

40. Amending a Deficient Complaint • Complaint may be amended only when: • The other party consents in writing and is given the opportunity to resolve the complaint through a resolution meeting; or • The Hearing Officer grants permission no later than 5 days before the Hearing occurs. * If a party files an amended complaint, the timeline for hearing recommences.

41. Resolution Meeting:Timeline • Within 15 days of receiving a Complaint the school district must hold a Resolution Meeting with the parents and “relevant” members of the Team unless: • The parents and the district agree in writing to waive the meeting; or • The parties agree to use mediation.

42. Resolution Meeting:Who Attends? • Must include a representative from the LEA who has decision making authority. • The entire Team need not attend. • The meeting must include the parents and the “relevant” member(s) of the Team who have specific knowledge of the facts identified in the complaint. • School district attorney can not attend the resolution meeting unless the parents bring an attorney.

43. Resolution Meeting: Written Agreement • If the meeting results in a resolution of the Complaint, the District and the parents must execute a “legally binding agreement” that is enforceable in federal or state court. • Either party may “void” the agreement within 3 business days of the agreement’s execution.

44. When Are We Going to Hearing? • If the District does not resolve the complaint “to the satisfaction of the parents” within 30 days after the District received the complaint notice, a due process hearing may be held and “all applicable timelines for hearing shall commence.”

45. Timelines • Complaint served on opposing party • Within 10 days response filed • Within 15 days objection to sufficiency of complaint filed • Within 15 days Resolution Meeting Held • Within 5 days of Objection to Complaint Decision by Hearing Officer • After 30 days – hearing can be held • Any amendment to complaint must be 5 days before hearing • Decision within 45 days of receipt of complaint?? 34 CFR 300.511

46. Due Process Hearing Officers • IDEA 2004 requires that Hearing Officers have basic legal qualifications. • Must be knowledgeable about applicable state and federal statutes, regulations, and case law. • Must possess knowledge and ability to conduct hearings in accordance with appropriate standard legal practice and ability to render and write legal decisions. • Must not have a personal or professional interest that conflicts with the person’s objectivity

47. Due Process Hearings • Hearing Officer can consider only those issues raised in the original or amended Complaint. • Hearing Officer’s ability to find a denial of FAPE based on procedural violations limited to situations where the procedural violations: • Impeded the child’s right to FAPE; or • Significantly impeded parents’ ability to participate in the Team process; or • Caused a deprivation of educational benefits

48. Exception to Limitation • Nothing in this subparagraph shall be construed to preclude a hearing officer from ordering a local educational agency to comply with procedural requirements under this section.

49. District’s Ability to Recover Attorney’s Fees • Against Parents’ Attorney • Complaint or subsequent cause of action is or clearly becomes frivolous, unreasonable, or without foundation. • Against Parent or Parent’s Attorney • Complaint or cause of action brought for improper purpose: to harass; cause unnecessary delay, or needlessly increase litigation cost

50. Parent’s Attorney Fees for Resolution Meeting ? • IDEA 2004 continues prohibition on award of fees for IEP meetings -unless ordered • (iii) OPPORTUNITY TO RESOLVE COMPLAINTS.—A meeting conducted pursuant to subsection (f)(1)(B)(i) shall not be considered • ‘‘(I) a meeting convened as a result of an administrative hearing or judicial action; or • (II) an administrative hearing or judicial action for purposes of this paragraph.