1. CASE LAW COMPLIANCE REFRESHER 2016 What would you do?

2. LEGAL FOUNDATION Individuals with Disabilities in Education Improvement Act of 2004 (IDEA) 22 PA Code Chapter 14 22 PA Code Chapter 711 US Court of Appeals for the Third Circuit Pennsylvania Delaware New Jersey Virgin Islands US Supreme Court Section 504 of the Rehabilitation Act

3. ANALYSIS What few essential questions would you pose in order to draw a conclusion for the case? What legal framework governs consideration in this scenario? What past court case decisions may impact the hearing officer’s decision?

4. SCENARIO #1 (WE DO) Case number 16109

5. ISSUES FAPE Transportation

6. ESSENTIAL QUESTION Did the LEA fail to provide FAPE by not meeting the requirements of the IEP to deliver “door to door” transportation?

7. LEGAL FRAMEWORK FAPE (Free, Appropriate Public Education) means special education and related services that a re provided at public expense, meet the standards of the SEA, include an appropriate education in the state involved, and are provided in conformity with an IEP Related services - t ransportation and such developmental, corrective, and other supportive services as are required to assist a child to benefit from special education ….

8. PREVIOUS CASES TO CONSIDER Board of Education v Rowley IEP must be reasonably calculated to yield meaningful educational…benefit and student or child progress”

9. ESSENTIAL QUESTION Did the LEA fail to provide FAPE by not meeting the requirements of the IEP to deliver “door to door” transportation?

10. CONCLUSION 3. NO: the LEA provided transportation as a related service as agreed upon in the IEP. Reason: the LEA met its obligation to transport the student from the mother’s residence in the morning to the out-of-District placement and from the placement to the mother’s residence at the end of the school day.

11. SCENARIO #2 Case number 01321

12. ISSUES FAPE Transition Assistive Technology Appropriate instruction and vocational training Should student’s eligibility be extended to allow more time for transition services Graduation and exiting from special education Compensatory education

13. ESSENTIAL QUESTION Was the student denied FAPE and therefore owed compensatory education costs?

14. LEGAL FRAMEWORK Meaningful benefit Transition Compensatory education Burden of proof - The burden of proof, generally, consists of two elements: the burden of production (which party presents its evidence first) and the burden of persuasion (which party’s evidence outweighs the other party’s evidence in the judgment of the fact finder, in this case the hearing officer). The burden of persuasion lies with the party asking for the hearing. (Schaffer v. Weast, 546 U.S. 49, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005)

15. PREVIOUS CASES TO CONSIDER Mary Courtney T. v School District of Philadelphia – meaningful benefit means that an eligible child’s program affords the opportunity for significant learning Shaffer v Weast – the party seeking relief bears the burden of proof High v Exeter Twp School District – Congress did not intend the IEP to guarantee a specific outcome, but to provide a basic level of educational opportunity

16. ESSENTIAL QUESTION Was the student denied FAPE and therefore owed compensatory education costs?

17. CONCLUSION 2. NO: The LEA implemented all aspects of the IEP and followed the transition plan as agreed upon by the IEP team. Reason: Parents claims were based on disappointment that the student’s educational and transitional outcomes were not as good as expected. Also, appropriateness of program and placement must be determined when offered and not afterward.

18. SCENARIO #3 Case number 16572

19. ISSUES Appropriate placement Audiotaping an IEP meeting Independent Educational Evaluation

20. ESSENTIAL QUESTIONS Is the placement the LEA has offered appropriate? Did the LEA err in denying the parent’s request to tape an IEP meeting? Did the LEA err in denying the parent’s request to fund an IEE?

21. LEGAL FRAMEWORK Least Restrictive Environment (LRE) Pendency

22. PREVIOUS CASES TO CONSIDER Oberti v Bd of Ed of Clementon School District – a 2-part test for determining appropriateness of LRE: Can the child be successful in the gen ed classroom with appropriate supplementary aids and services If placement outside the general education classroom is necessary, does the child have the opportunity to be included with non-exceptional children to the maximum extent possible Burlington-Carter analysis for tuition reimbursement

23. PREVIOUS CASES TO CONSIDER Burlington-Carter analysis - The United States Supreme Court has established a three-part test to determine whether or not a school district is obligated to fund a private placement when parents unilaterally remove a child and enroll the child in a private school. Burlington School Committee v. Department of Education of Massachusetts, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). First, was the district’s program and placement legally appropriate under the IDEA? Second, is the parents’ proposed placement appropriate? Third, would it be equitable and fair to require the district to pay? The second and third tests need be determined only if the first is resolved against the school district. See also, Florence County School District v. Carter, 510 U.S. 7, 15, 114 S. Ct. 361, 366, 126 L. Ed. 2d 284 (1993); Lauren W. v. DeFlaminis, 480 F.3d 259 (3rd Cir. 2007). This three-part test is referred to as the “Burlington-Carter” test for tuition reimbursement claims under the IDEA.

24. ESSENTIAL QUESTIONS Is the placement the LEA has offered appropriate? Did the LEA err in denying the parent’s request to tape an IEP meeting? Did the LEA err in denying the parent’s request to fund an IEE?

25. CONCLUSION 1. YES: The LEA offered a sound program to meet the needs of the student’s IEP and offered to reconvene the meeting for taping. An independent evaluation is not required to be funded. Reason: The placement offered by the LEA provided a less restrictive environment than the private school.

26. SCENARIO #4 Case Number 16497

27. ISSUES Appropriateness of ESY program Compensatory education

28. ESSENTIAL QUESTIONS Was the summer offering for course recovery sufficient to meet the ESY needs of the student?

29. LEGAL FRAMEWORK Least restrictive environment Compensatory education Independent educational evaluation (IEE)

30. PREVIOUS CASES TO CONSIDER Board of education v Rowley

31. ESSENTIAL QUESTIONS Was the summer offering for course recovery sufficient to meet the ESY needs of the student?

32. CONCLUSION 2. NO: The proposed credit recovery program is not a special education service and does not address the individual IEP goals of the student Reason: ESY is for maintenance of progress made towa rd the goals and objectives in the IEP.

33. SCENARIO #5 Case number: (16622)

34. ISSUES Appropriateness of educational program Compensatory education Independent educational evaluation (IEE) at public expense

35. ESSENTIAL QUESTION Is the student entitled to compensatory education?

36. LEGAL FRAMEWORK Pa. Code § 14.133 restraints to control acute or episodic aggressive or self-injurious behavior may be used only when the student is acting in a manner as to be a clear and present danger to himself…

37. ESSENTIAL QUESTION Is the student entitled to compensatory education?

38. CONCLUSION 2. YES: The LEA was not meeting the student’s needs and the use of restraints caused the student’s unwillingness to attend school. Reason: The child had communication needs that were not being addressed appropriately leading to an increase in aggressive behavior thereby leading to more restraints.

39. THANK YOU! JUDY BALL jball@pattan.net BECKY FOGLE rfogle@pattan.net