VAESP 2015 Legal Workshop Jason H. Ballum Reed Smith LLP Riverfront Plaza, West Tower 901 East Byrd Street, Suite 1700 Richmond, VA (804)

Agenda School administrators’ most common source of legal non- compliance – Special Education Special Education Tips for Principals Top Ten Tips for Special Education Law

Special Education Issues Require Special Knowledge Special Education Tips for Principals The Principal is the Building Leader for Special Education. The Principal is Responsible for Compliance in the Building with Special Education Procedures.

The Principal Must Arrange for Training of Staff in the Area of Special Education. The Principal Should Conduct Periodic Audits to Determine the Successful Implementation of Special Education Programs. The Principal Should Stress to Staff the Importance of Data Collection and of Issuing Good Progress Reports.

Top Ten Tips for Special Education Law 1. Develop an IEP/504 plan that meets the needs of the student and offers an appropriate education. 2. Only put an accommodation or service in the IEP if it is necessary for the child to receive an appropriate education.

Top Ten Tips for Special Education Law 3. Do not put anything in the IEP unless there is agreement by the school division. 4. IEP decisions are not made by majority vote. Decisions are made by consensus.

Top Ten Tips for Special Education Law 5. Consider any information or evaluations shared by the parents at the IEP meeting and any request from the parents for services and IEP provisions. 6. If Tip 5 results in a disagreement, then provide prior written notice.

Prior Written Notice Prior written notice (PWN) must be provided when: There is a proposed action which is refused by the parents or the school division. When the school proposes an action When the parents request an action

Top Ten Tips for Special Education Law 7. Implement the IEP as it is written until the IEP is changed with parental consent. 504 distinction?

Teacher Responsibilities Following an IEP or § 504 Meeting Doe v. Withers, 20 IDELR 422 (W.Va. Cir. Ct., 1993)

Teacher Responsibilities Following an IEP or § 504 Meeting The jury found against the history teacher and awarded damages in favor of D.D. in the amount of $15,000 ($5,000 in compensatory damages and $10,000 in punitive damages). The court entered a final judgment against the teacher and ordered Mr. Withers to pay D.D. $15,000. The teacher was personally liable. Moral of Doe v. Withers: Be aware of the IEP provisions and implement it as written.

Top Ten Tips for Special Education Law 8. Do not say inappropriate things at an IEP or 504 meeting.

Common ways to break number 8 “I will have to check with the attorney to see if we should provide that service.” “I will have to check with the special education director to see if that service can be added to the IEP.”

Common ways to break number 8 (continued) “We don’t have the money to do what you ask.” “If she were my child, ….” “Confidentially speaking….”

Common ways to break number 8 (continued) “Off the record….” or “I could lose my job for telling you this.” “We don’t provide that service in the school division.” “I don’t provide that accommodation in my class.”

Common ways to break number 8 (continued) “All children with that disability are placed in this program.” “Oh, does your child have a disability? He seems just like the other students in my class.”

Common ways to break number 8 (continued) “We met prior to this IEP meeting and determined….” “This IEP provides the most appropriate (or best) program for your child.” “We don’t have the expertise to discuss or make the changes you requested.”

Common ways to break number 8 (continued) “I don’t have room in my schedule to see your child five times a week.” “Honey, don’t worry about your son’s new goals. We just do the same thing for everybody in this class.”

Common ways to break number 8 (continued) “We will place your child into a general education classroom if you put him on Ritalin.” 20 U.S.C. 1412(a)(25) prohibits a school from making medication a condition for attending school or receiving services.

Top Ten Tips for Special Education Law 9. Do not use . (At least not to convey any information that you would not mind sharing directly with the parent.)

Explanation of number 9 Staff are too informal in their s. We can be required to disclose to parents all s – even “deleted” s. New regulations make at least some s part of the student’s education record.

Explanation of number 9 Cost of search, redaction, and production is great. Damaging to relationships with parents and/or our legal defense.

Top Ten Tips for Special Education Law 10. Comply with the timelines: Child Study – 3 days/10 days Eligibility – 65 business days Every three years Evaluations – 2 business days IEP/504 plan development – 30 days Annual review Prior written notice – reasonable time

Special Education Timelines Con’t IEP must be reviewed and revised annually. Students must be reevaluated every three years. Evaluation must be initiated in sufficient time to be completed prior to triennial date. Transition Services – start with IEP in effect when student turns age 14.

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