LEADERSHIP IN SPECIAL EDUCATION Presented by: Eric g. rodriguez

THREE Common Issues ARD meetings. Discipline. Parents. Let’s take these up one at a time.

Issue #1: ARD Meetings We need a “representative of the public agency” at the meeting. This person must be “qualified to provide, or supervise the provision of” special education. Must be “knowledgeable about the general education curriculum.” Must know about the “availability of resources” of the school. 34 CFR 300.321.

Some Important Commentary “It is important, however, that the agency representative have the authority to commit agency resources and be able to ensure that whatever services are described in the IEP will actually be provided.” DOE says it does not need to put this in regulation, as “the public agency will be bound by the IEP that is developed at an IEP Team meeting.” 71 Federal Register 46670 (2006).

Implications of That The district is “bound by” the decisions made at the ARD. So don’t you want to have a campus administrator there? Note also: our rep must “be able to ensure that whatever services are described in the IEP will actually be provided.” This has to do with follow- through. See Next Slide for Blunt Statement.

Blunt Statement If you persistently have a problem with getting IEPs implemented faithfully, the problem is a lack of administrative leadership. Either ARDCs are over committing the district’s resources; Or administrators are not holding teachers accountable for IEP implementation.

Let the Teachers’ Lounge Work for You Bringing in a lawyer to put the “fear of the law” into teachers about IEP implementation will not work. But a write-up of one teacher over this issue will work. The write-up need not be harsh. It just has to be clear. Then you can let the teachers’ lounge do the work for you.

The Leader We should look to the campus administrator for leadership at the ARDC meeting. Special education staff should support and facilitate this. A leader leads first by example in how she or he attends the ARDC meeting. So let us consider the word “attend.”

“Attend” the ARD Meeting Some of the ways the word “attend” is defined: to take care of, minister to, devote one’s services to; tend, guard, take charge of, look after, watch over. Nowhere does it say “sit in the room while your mind is elsewhere.”

The Hard ARD If we are headed into non-consensus, the campus administrator needs to ask the three key questions: Is this worth fighting over? Are we legally defensible? Are we united? If all three are answered with a YES……

Closure Without Consensus Bringing the meeting to closure without consensus involves knowing the Texas recess rule. “If a ten-day recess is implemented…and the ARD committee still cannot reach mutual agreement, the district shall implement the IEP which it has determined to be appropriate for the student.” 19 T.A.C. 89.1050(h)(4).

Leadership at the Non-Consensus ARD Some ARDs will end in non-consensus. ARDs can come to closure without consensus, but that process requires leadership. Remember that in special ed, leaders listen first; then lead. The leader takes responsibility for clear communication with the parent.

Non-Consensus Process School does not have to offer a recess of the ARD when the student’s presence on campus is dangerous, or when student has committed an expellable or DAEP offense. When ARD reaches closure without consensus, “the district shall implement the IEP which it has determined to be appropriate for the student.” 89 T.A.C. 1050(h)(4). Parent has legal options—complaint, mediation, due process hearing.

Issue #2: Discipline A BIP is designed to IMPROVE student behavior, not just react to misbehavior. A BIP is not, therefore, the student’s individualized code of conduct. It is proactive, positive, educational. Not punitive. Texas law: if the ARD develops a BIP, it must be “included as part of the student’s IEP and provided to each teacher with responsibility for educating the student.” T.E.C. 29.005(g).

Let Us Know What You Are Doing Due to tight timelines, it is essential that campus administrators notify special education staff PROMPTLY when a student is removed for disciplinary reasons. Who is counting days of removal? Are we all counting in the same way?

Discipline: The Two-Step Campus administrators determine whether or not the student violated the code of conduct. If so, then campus administrators assess the punishment, in accordance with district policy. If the punishment amounts to a change of placement, then an ARDC is necessary. The ARDC makes the manifestation determination, and assesses what it will take to ensure that the student continues to receive FAPE.

Doing the Two-Step Campus administrators should do their part first, and should not push the special education department into a premature ARD meeting. We have ten school days in which to conduct the ARD, and must give the parent five-school days notice.

The Manifestation Remember the purpose: to ensure that we are not discriminating against a student based on disability. This is a time when administrators need to listen first; then speak and lead. There are things that can be done even when the behavior is a manifestation—change of placement, changes to the BIP, non-punitive consequences.

Issue #3: Parents Of course, all parents must be treated with respect and courtesy. Good communication is critical. But parents of students with disabilities have more legally enforceable rights than the other parents. Such as? See Next Slide!!!

Parents’ Rights The right to a voice in every important educational decision. The right to challenge school decisions through a due process system independent of the school. The right to invoke “stay put.” The right to a full individualized evaluation of their child’s needs.

More Rights The right to an independent evaluation under certain circumstances. The right to obtain reimbursement for private school tuition under certain circumstances. Access to attorneys, advocates and organizations to help parents enforce these rights. No other group of students/parents has a similar network of support.

Don’t Get Too “Righteous” Despite the law’s emphasis on “rights,” the entire system of special education decision- making is based on a collaborative model. Consensus is the goal. Reasonableness is the standard. We must be aware of the legal background, but should focus on reasonableness. In a special education legal dispute, the unspoken issue is always: which side is being unreasonable here?

Implications In dealing with stressful, difficult special education situations, educators must maintain their focus on serving the student appropriately. Courtesy, kindness, patience, compassion are all called for. And we lawyers will always remind you to document your kindness and compassion.

Contact INformation Eric G. Rodriguez Walsh, Gallegos, Treviño, Russo & Kyle, P.C. 100 N.E. Loop 410, Ste. 900 San Antonio, Texas 78216 Phone: 210-979-6633 Fax: 210-979-7024 Email: erodriguez@wabsa.com Web: www.WalshGallegos.com

Thank you! The information in this handout was created by Walsh Gallegos Treviño Russo & Kyle P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney. © 2016 Walsh Gallegos