HOT BUTTON ISSUES IN HOT BUTTON ISSUES IN SPECIAL EDUCATION SPECIAL EDUCATION

LAWLAWRon Lospennato, Esq.Ron Lospennato, Esq.

SPLC School To Prison Reform ProjectSPLC School To Prison Reform ProjectCourtney A. Bowie, Esq.Courtney A. Bowie, Esq.

SPLC Mississippi Youth Justice ProjectSPLC Mississippi Youth Justice Project

Significant Changes under

IDEA 2004 •TOPICS

– IEPS–DUE PROCESS–DISCIPLINE–RESPONSE TO INTERVENTION

Individualized Education Programs

• No Short Term Objectives Required– They can be requested for any student;– Only required for students who are taking

alternate assessments (very small percentage of students with disabilities)

• Multi-year IEP Process– Up to 15 states may allow LEAs to offer

(with parental consent) a multi-year IEP, not to exceed 3 years

Short-Term Objectives• The result of the lack of STOs, in

many cases, is that the curriculum is written into IEP as the annual objectives

• Without advocacy, IEP can end up being weak and/or meaningless

IEP Progress Reports• The progress the student is making

toward meeting the annual goals is still required in the IEP;– BUT

• “the extent to which the progress is sufficient to attain the goal by the end of the year” is no longer in the law

Transition (14 to 16)

• Transition is now required for the IEP in place when the student turns 16– It can be requested at an earlier age,

but it is no longer required at 14– There is good news….

Transition Services (defined)

• A coordinated set of activities for a child with a disability that (i) 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 post-secondary education, vocational education, integrated employment, continuing and adult education, adult services, independent living, or community participation, (ii) based on the child’s individual needs, taking into account the child’s strengths, preferences, and interests; and includes –

TRANSITION SERVICES (cont.)• Instruction• Related services• Community experiences• The 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.

– 34 CFR Sec. 300.43, 20 USC 1401 (34)

IEP attendance and participation

• The new law allows certain IEP team members to be excused from attendance if their area is not being discussed

• Written parental consent is required before this can occur

DUE PROCESS-IDEA 2004

• Resolution Sessions• Procedural Safeguards• Statute of Limitations• Notice/Sufficiency• Attorneys’ Fees

Resolution Session• Number One New Issue• MANDATORY

– parents must attend a resolution session within 15 days of filing a due process complaint

– School district has 30 days to resolved the complaint

Resolution Sessions (cont.)

• Not Confidential– Could be a fishing expedition for

district• School cannot have their attorney

present if parent does not have an attorney present

• No attorneys’ fees

Procedural Safeguards • Procedural safeguards are given

out:– only upon initial referral, – when parent requests an evaluation, – when due process filed, or – if parent requests a copy

Statute of Limitations

• TWO YEARS– From date the parent knew or should

have known that an IDEA violation occurred

Due Process Complaint Notice/Sufficiency

Challenges

• School districts must file a response to a due process complaint within 10 days unless the district notifies h.o. within 15 days that it is challenging the sufficiency of the complaint (similar to motion to dismiss)

• Significant change for states like Louisiana that allowed oral complaints over the phone

Attorneys’ Fees• School districts may ask for

attorneys’ fees for defending against frivolous due process complaint (i.e. Rule 11)– Parents may be responsible if the

purpose of the due process is unnecessary delay or needless increase in the cost of litigation

DISCIPLINE• Stay-put• Services in IAES• 45 Day Rule• Weapons, Drugs & Serious Bodily

Injury• Manifestation Determination Reviews

STAY-PUT RULE• Stay put used to keep a student with a

disability in her current educational setting after a complaint was filed (i.e. 10-day change in placement)

• The new law keeps the child in the interim alternative educational setting (IAES) while, for instance, an MDR is challenged

Services To Be Provided to Students in IAES

• The 1997 law stated that a student had to be provided services sufficient to meet the goals and objectives of his IEP;

• The new law states that a student has to be provided services to enable him to progress toward meeting the goals in the IEP.

45 Calendar Day vs. School Day

• The old law stated that a SWD could only be removed for 45 calendar days for offenses involving weapons or drugs

• The new law states that a SWD may be removed for 45 school days (9 weeks) for offenses involving weapons, drugs, or serious bodily injury.

Weapons, Drugs, and Serious Bodily Injury

• Students with disabilities may be removed to an IAES for 45 school days for: weapons, drugs, and serious bodily injury

Serious Bodily Injury• Defined as: involving a 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

Manifestation Determination Reviews

• Now have to show that behavior was caused by or had a direct and substantial relationship to the students’ disability;

• The law no longer includes a requirement that MDRs include consideration of whether or not the IEP was being implemented.

RESPONSE TO INTERVENTION

• Response to Intervention (RTI) required for students suspected of having learning disabilities

• This is being used very broadly for students suspected of all types of disabilities

RTI – The Good, The Bad

• The good:– It is designed to ensure that students have

had quality instruction prior to being identified as having a learning disability

• The bad:– It can delay evaluation for six months– Parental involvement varies from LEA to

LEA

QUESTIONSQUESTIONS