Melissa L. Olive, Ph.D., BCBA-D Applied Behavioral Strategies, LLC … · 2018-04-30 · SPED Law...

SPED Law and Ethics for Behavior Analysts 12/17/2015

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Special Education Law

and the Practicing

Behavior Analyst:

Legal and Ethical

Considerations

Melissa L. Olive, Ph.D., BCBA-D

Applied Behavioral Strategies, LLC

I AM NOT AN ATTORNEY

I AM NOT GIVING LEGAL ADVICE

Applied Behavioral Strategies LLC

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Melissa OliveApplied Behavioral Strategies LLC

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Objectives

• Review the process of developing the IEP

• Understand what should be included in a carefully developed IEP

• Learn about parental rights during the IEP process


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Agenda

1. Brief review of other laws (ADA, 504, and IDEIA)2. IDEIA (Difference between Part C and Part B)3. General Procedures4. Types of disabilities covered (Part C and Part B)5. Independent Educational Evaluations (IEE)6. The IEP, IFSP, and BIP7. When FBAs are required8. When BIPs are required9. Restraint and Seclusion10. When data collection is required11. Questions and Discussion


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504 and ADA

• Section 504 of the Rehabilitation Act▫ Only if you receive federal funding▫ Think of it as post school (but also covers school)

• The Americans with Disabilities Act▫ Think of it as everything outside of school (but

also includes school buildings)

• Protect from discrimination• Federal legislation• No money attached• Penalties


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Similarities: ADA/504

• Both are for disabilities that limit life activities

• Both are designed to protect individuals with disabilities from being discrimination

• Reasonable accommodations must be made

• Individuals with contagious diseases are protected under both as long as they do not directly threaten the health or safety of others.


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Differences: ADA/504

• 504: all places receiving federal dollars must comply; ADA is for everyone to follow

• ADA is limited to physical or mental disability; 504 can be a temporary disability


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IDEIA History (Summary)

• Originally passed in 1975 (PL 94-142; EAHCA)

• Modified in 1986 (PL 99-457; Part H)

• Modified and renamed in 1990 (PL 101-476)

• Early Childhood Amendments in 1991 (PL 102-119; Part H became Part C)

• IDEA Reauthorized in 1997 (Part C revised again)

• Reauthorized in 2004

• Major changes proposedApplied Behavioral Strategies LLC

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IDEIA, 2004

• Part A (general provisions)▫ purposes and definitions

• Part B (Assistance for Education for All)▫ formulas, FAPE, procedural safeguards

• Part C (Infants and Toddlers with Disabilities) (Formerly Part H)▫ states serve 3-5, grants to agencies 0 to 3

• Part D (National Activities)▫ grants, technical assistance, dissemination,

personnel trainingApplied Behavioral Strategies LLC

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What is Part C?

• Infants and children birth through 2 (or up to age 3)

• ECI, EI, Birth to Three, B23, 0-3

• Purpose of Part C:

▫ assist each State to maintain and implement a statewide, comprehensive, coordinated, multidisciplinary, interagency system to provide early intervention services for infants and toddlers with disabilities and their families


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What is Part B?

• Special Education

• In most states ages 3+

• In some states 5+


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General Procedures:

• Referral

• Assessment

• Eligibility Determination

• Document Development (IEP or IFSP)

• Determination of Services

• Placement Decisions

• Progress Monitoring

• Reviews

• Re-evaluationApplied Behavioral Strategies LLC

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IDEIA Eligibility

• Every state has own definitions• Every state has own age groupings• Usually Part C

▫ Serves children 0 to age 3▫ Generally:

Delay in one or more areas (cognitive development, physical development, communication development, social or emotional development, and adaptive development)

Diagnosed condition

At risk for developing delay

• Part B has 14 eligibility categoriesApplied Behavioral Strategies LLC

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Who is Served by IDEIA Part B?

One of these PLUS educational need• Autism

• Deaf-blindness

• Deafness

• Hearing impairment

• Mental retardation

• Multiple disabilities

• Orthopedic impairments

• Other health impaired

▫ (ADD and ADHD fall here)

• Emotional disturbance

• Specific learning disability

• Speech or language impairment

• Traumatic brain injury

• Visual impairment, including blindness

• Developmental Delay

▫ Up to age 9

▫ Check your state


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Are IDEIA Services Free?

• Part C

▫ Unlike school age services, early intervention may or may not be free

▫ Varies from state to state

▫ Co-pays are a possibility

▫ Insurance?

• Part B

▫ FAPE

▫ Lab fees, field trips, etc


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Part C Regulations

• The latest regulations for Part C changed

• For services and for personnel the language now states, “includes but not limited to”

• Thus, ABA can be a service and BCBA/BCaBA may be personnel


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Independent Educational Evaluation

• Independent Educational Evaluation• If family disagrees with an evaluation for any

reason:▫ must provide info to families about where one can be

obtained (on request)▫ must be paid for by school regardless of the results▫ if school thinks theirs is appropriate then they must

request due process▫ if parents bring independent evaluation; school must

consider it▫ Family may ask for ONE for each evaluation by the

school


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Independent FBA

• If school conducts an FBA and parents “disagree”

• Or if school should have completed an FBA as part of the initial evaluation but failed to

• Parents may request an independent FBA at school district expense

• An FBA is an assessment


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Document Development

• IFSP▫ PLOPs▫ Family Concerns, Resources, Priorities▫ Measurable Outcomes (often encouraged to be “family

friendly”)

• IEP▫ PLOPS▫ Areas of Need▫ Measurable academic and functional outcomes

• BIP▫ Part of the IEP


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Document Development, cont

• Services Needed (includes but not limited to)

▫ Part C-services

▫ Part B- special education and related services

• Timeline for services

• Location of services

▫ Part C- Natural environment

▫ Part B- Least Restrictive Environment

• Written Consent (includes BIP)


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Write Appropriate Measurable

Objectives• Lignugaris Kraft Article

• Great resource for training teachers and parents

• http://www.casenex.com/casenex/cecReadings/writingBetterGoals.pdf


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Considerations During the Meeting

• Strengths of the child

• Concerns of the parents for enhancing the education of their child

• Results of the initial evaluation or most recent evaluation of the child

• Academic, developmental, and functional needs of the child


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Services

• §300.320(a)(4)

• Must have a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child

• OT, Speech, Assistive Technology, Counseling, and so forth


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Special Considerations (Part B)

• For a child whose behavior impedes the child's learning or that of others:

▫ consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior

• Consider the communication needs of the child

• Consider whether the child needs assistive technology devices and services


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Least Restrictive Environment

• “To the maximum extent appropriate…..”

• “Only if…..the use of supplementary aids and services cannot be achieved satisfactorially”

• Placement is made:

▫ By team of people

▫ Considering the IEP

▫ As close to child’s home as possible

• And other key points!


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§300.226 Early Intervening Services

• Professional development for teachers and other school staff to enable such personnel to deliver scientifically based academic and behavioral interventions, including scientifically based literacy instruction, and, where appropriate, instruction on the use of adaptive and instructional software; and

• (2) Providing educational and behavioral evaluations, services, and supports, including scientifically based literacy instruction.


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Document Review

• IFSP

▫ Reviewed every 6 months

▫ Or more often if necessary

▫ Or more often if requested

• IEP

▫ Must be reviewed at least annually

▫ May occur more often if needed

▫ Parents may request an IEP meeting at any time


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Progress Monitoring

• We call that data collection and graphing

• Students with disabilities should receive progress reports as often as children without disabilities

• The IEP drives other reporting

▫ Parents may ask for more frequent reports


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Why Collect Data?

• Because I(DEIA) says so!• {300.320 (a)}:

▫ (2)(i)Statement of measurable annual goals, including academic and functional goals

▫ (3) A description of-- (i) How the child’s progress toward meeting the annual goals

described in paragraph (2) of this section will be measured; and

(ii) When periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided;


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Why Collect Data

• Each public agency must {300.320 (2)}:▫ (1) Provide services in accordance with IEP▫ (2) Make good faith effort to assist the child in

achieving goals and objectives listed in IEP

• (b) Agencies, teachers, or other person cannot be held accountable if child does not achieve projected growth

• (c) Parents may ask for revisions in the IEP or invoke due process procedures if they feel that efforts in (a) are not being made


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Why Collect Data?

• {300.347 (a) (7)}

• (i) How the child’s progress towards the goal will be measured

• (ii) How the parents will be regularly informed at least as often as non-disabled children (report card, etc) about:▫ (A) Child’s progress toward annual goals

▫ (B) The extent to which progress is sufficient to enable child to achieve goal by the end of the year


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Response to Intervention

• General Education Teachers are required to try different interventions if a child is not making progress

• If the child fails to respond to the intervention, then a referral to special education may be made

• The parent may request an evaluation at any time


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Restraint & Time Out

• Varies from state to state

• Know your state law!

• Texas Side by Side


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Proposed Federal Policy

• H.R. 1381 (2010) the Preventing Harmful Restraint and Seclusion in Schools Act▫ Didn’t pass

• Keeping All Students Safe Act Recently Proposed (S.2020)▫ States must develop policies▫ Prohibition of seclusion, chemical restraint,

mechanical restraint, aversive behavior interventions, and physical restraint that is harmful.


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Resource (State by State)

www2.ed.gov/policy/seclusion/summary-by-state.doc

../My Documents/personal/IDEA/Side-by-Side_Jan_2010.pdf



DOE Position on Restraint and

Seclusion

http://www2.ed.gov/policy/seclusion/restraints-and-seclusion-resources.pdf

15 Principles of DOE Position

1. Prevent

2. No mechanical or chemical restraints (except when authorized by a physician)

3. Use only when emergency, when other interventions are ineffective and, discontinue ASAP

4. Policies to apply to all children

5. Children have the right to be treated with dignity and to be free from abuse


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15 Principles Continued

6. Never used as punishment, means of coercion or retaliation, or convenience

7. Never harmful or restrict breathing

8. Multiple uses of restraint should trigger a review and result in positive interventions

9. Any use of restraint or seclusion should address underlying causes/purposes of behavior


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http://www2.ed.gov/policy/seclusion/restraints-and-seclusion-resources.pdf



15 Principles, cont

10. Implementers should be trained (how to do it and how to prevent it—including PBS)

11. Visual monitoring of every instance

12. Parents should be informed of the policies

13. Parents should be notified as soon as possible following each instance

14. Review and update policies regularly

15. Document each instance in writing


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Other Parent Rights

• Copy of your rights• Confidentiality• Extended School Year (ESY)

▫ Individualized decision▫ Based on regression, recoupment, and critical

skills▫ Assistive Technology Evaluation and Services

• Transition Services▫ From state agency to public schools▫ Age 16 (or sooner if appropriate)


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Other Parent Rights

• Placement in Private Schools

• Due Process

• State complaints

• Mediation


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Questions?


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Resources

• http://www.nichcy.org/Pages/Home.aspx

• http://idea.ed.gov/explore/view/p/%2Croot%2Cstatute%2CI%2CC%2C

• http://idea.ed.gov/

• http://wrightslaw.com/


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http://www.nichcy.org/Pages/Home.aspx

http://idea.ed.gov/explore/view/p/,root,statute,I,C,

http://idea.ed.gov/

http://wrightslaw.com/

Melissa L. Olive, Ph.D., BCBA-D Applied Behavioral Strategies, LLC … · 2018-04-30 · SPED Law...

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