1. How to Avoid Common Due Process Complaints
Jennifer Mauskapf, Esq.
Monica Munin, Esq.

2. Topics Covered Child Find/RTI Responsibility to Evaluate IEP Teams
Discipline
Documentation
Due Process Complaints

3. Legal Resources IDEA Website - http://idea.ed.gov/
Code of Federal Regulations: 34 CFR Part 300

4. Child Find

5. The Law
Child Find
“State must have in effect policies and procedures to ensure that – All children with disabilities residing in the State are identified, located, and evaluated.” 34 CFR
Includes public and private schools
Includes homeless and migrant children and wards of the state

6. Child Find
Child Find
General testing
Referral system
Early Intervening Services
RTI
BEST PRACTICE: have clearly articulated procedures for when a teacher or other staff member has academic or behavior concerns about an unidentified student.

7. Early Intervening Services
Early Intervening Services (EIS) 34 CFR
Student NOT currently identified but who need additional support
LEAs may set-aside up to 15% of Part B funds for EIS
LEA MUST set-aside 15% if significant disproportionality

8. Response to Intervention (RTI)

9. Response to Intervention (RTI)
Process for determining that a child is a child with a specific learning disability based on a child’s response to scientific, research-based intervention.
Why is RTI included in IDEA?
To ensure that underachievement in a child suspected of having specific learning disability (SLD) is not due to lack of appropriate instruction
Intent of Congress to more accurately distinguish between children with SLDs from those whose learning difficulties could be resolved with more specific, scientifically based, general education interventions.

10. Response to Intervention
Required components of RTI
high quality, evidence-based instruction in general education settings;
screening of all students for academic and behavioral problems;
two or more levels (sometimes referred to as “tiers”) of instruction that are progressively more intense and based on the student’s response to instruction; and
progress monitoring of student performance.
OSEP Letter (Sept 2013)

11. Response to Intervention (cont.)
If you use RTI Strategies, LEAs must promptly request parental consent to evaluate a child if the child has not made adequate progress after an appropriate period of time.
However, the regulations do not specify a timeline for using RTI or define “adequate progress.”
Timeline will vary depending on circumstances but generally not acceptable to wait several months
* Parent may request an evaluation at any time during the RTI process (RTI does not replace evaluations)

12. Responsibility to Evaluate a Child in all Areas of a Suspected Disability

13. Fact Pattern Student: John, 3rd grader, no IEP.
John has been enrolled at your LEA for two years. Last school year, he lived with his father. This year, his mother is taking a more active role in his education. Noticing his lack of progress on homework and quizzes, she asks whether there is any testing that could see if he has a disability.
The LEA’s policy in these circumstances is to refer the student to their RTI process when a parent requests evaluations. Then, if the student responds to the interventions, the LEA does not conduct evaluations.

14. Fact Pattern
After two weeks in tier one, John makes no progress and the RTI team decides to try tier two supports.
Initially John responds to tier two interventions but after a month the interventions stop working. John continues to receive the tier two interventions for 2 more weeks with no results.

15. Fact Pattern
John’s focus issues worsen and mom begins getting calls home 2-3 times a week about behavior issues. Mom, not entirely clear about the services John is receiving and frustrated by the phone calls, asks the teacher if there are any further supports or testing that can be done to help her son.

16. Discussion Questions
How long is it appropriate for a student to remain in RTI?
What are the LEA’s obligations regarding request for evaluation during RTI?
Is that appropriate parent-teacher communication?
What’s the LEA’s exposure?

17. Initial Evaluations Consent is required
Reasonable efforts and parents refuse or fail to respond – can override through due process
BEST PRACTICE: Require Personnel to DOCUMENT Reasonable Efforts!!!! (Calling, letters, s, visits to parent’s home and/or work)
No FAPE violation if LEA does not override

18. Reevaluation Reevaluation: Every 3 years Consent required?
Not more then 1 per year
Consent required?
If just reasonable efforts and parents refuse – the LEA can override through due process
Reasonable efforts and parent fails to respond – parental consent not required
No FAPE violation if LEA doesn’t override consent!

19. Independent Educational Evaluation
Evaluation conducted by a qualified examiner who is not employed by the LEA responsible for the education of the child in question.
Parent has the right to an independent educational evaluation at the public expense if the parent disagrees with an evaluation obtained by the LEA.
Can ask the parent the reason why he or she objects but can not require the parent to provide an explanation

20. OSEP Letter (Feb 2014)
State or local policy may restrict classroom observation by third parties, such as attorneys and educational advocates, even if such third parties are IEP team members.
However, state or local policy may not restrict independent evaluators from observing students in classrooms, unless applies the same restriction to its own evaluators.
SEA or district may require, prohibit or limit the use of recording devices during IEP meetings.

21. Fact Pattern Student, Amelia, 11th grade, transfer with an IEP
Amelia’s IEP reflects that a triennial evaluation occurred 1 year ago and that she is classified as having a specific learning disability.
A month or so into the school year, Amelia stops showing up to class, her mother reports that she has become “depressed” and attempts to have her evaluated by a local hospital have been unsuccessful.
Attempts by the school social worker to re-engage Amelia have been unsuccessful. After accumulating over 50 absences, the school unenrolls Amelia.

22. Discussion Questions
What obligations, if any, does the State have under the IDEA?
What obligations does the LEA have under the IDEA?
What processes should the LEA have in place to serve students like Amelia?
Where is the LEA potentially at risk here?

23. IEP TEAM MEETINGS

24. Types of Meetings
Eligibility
IEP Development
Annual
MDR
Other

25. Responsibilities of IEP Teams
Review evaluations and data
Determine eligibility
Develop IEP
Placement
Services
Supports
Review IEP annually and when necessary
Manifestation determination when necessary
Appropriate services if a change in placement is warranted
Address other concerns as need arises

26. IEP Team Members 34 C.F.R. § 300.321 Parent
CORE MEMBERS
Parent
At least 1 regular ed teacher, if child participating
At least 1 special ed teacher/provider
LEA representative
LEA can designate member
Individual who can interpret evaluation results
MAY BE REQUIRED
Individuals with special knowledge or expertise on child
Related services personnel
Child, when appropriate
Invite transition service agency representatives
Invite Part C service coordinator/rep, if parent requests

27. Who Can Miss an IEP Meeting?
Required members may be absent:
For all or part of meeting, if
LEA and parent agree in writing
Meeting without parent:
Permitted, but need documentation of attempts to arrange mutually agreed on time and place. 34 C.F.R. § (d)

28. What if a Member Misses an IEP Meeting?
If the missing IEP team member’s area or related service is not modified or discussed
No input is needed
If the missing IEP team member’s area or related service will be modified or discussed
Member must provide written input on development of the IEP prior to the meeting

29. Fact Pattern James: 9 years old, 4th grade at LEA
In 2nd grade at LEA, James was found eligible under IDEA as a student with a specific learning disability (SLD).
James receives special education services in reading and math. His current IEP provides for 3 goals in each subject. The IEP provides for:
3 hour/week of specialized instruction inside the general education classroom in reading; and
2 hours/week of specialized instruction outside the general education classroom in math.

30. Fact Pattern
James’ IEP is up for an annual review in 2 weeks. An IEP meeting has been scheduled for the next week and parent has confirmed attendance in writing.
James’ IEP progress reports from last year indicate that he made progress on all 6 goals, but only mastered 3 of the goals (2 in reading and 1 in math).
The school-based team put together a draft IEP to provide to parent in advance of the meeting. The draft includes 3 new goals for math and 2 new goals for reading. The 1 reading goal that James did not master is retained.

31. Fact Pattern
The baseline for all 3 proposed math goals state: “James is below grade level in math.”
The IEP team is also proposing to increase James’ specialized instruction in math to 5 hours per week outside of the general education setting.
The IEP meeting takes place. Parent requests that the math baseline be more detailed but agrees with the rest of the draft IEP. The IEP is finalized.
The student’s paraprofessional attends the meeting. The special education teacher does not.

32. Discussion Questions Is it ok to repeat goals?
How is “progress” defined in terms of filling out progress reports?
Are progress reports monitored?
Do James’ math goals have an appropriate baseline?
Is it okay that the SPED teacher did not attend the meeting?
Does parent’s agreement with IEP protect the LEA from any potential FAPE violation resulting from the IEP contents?

33. The Law IEPs must include:
Statement of present levels and functional performance
Statement of measurable annual goals
How goals will be measured
Statement of special education and related services

34. Individualized Education Program
Explanation of the extent to which the child will not participate with nondisabled children in the regular class
Statement of appropriate accommodations
Projected date for beginning of services, and anticipated frequency, location, and duration of services
Transition services, if applicable

35. Best Practices Baseline should be detailed and measurable.
“The student currently adds 2 digit numbers correctly in 2 out of 5 attempts.”
Goals should be detailed and measurable.
“The student will be able to add 2 digit numbers correctly in 4 out of 5 attempts.”
Goals should be designed for the student to master them within the year.
If a goal is retained in the next year document why team believed that was appropriate.

36. Review & Revision of IEPs 34 C.F.R. § 300.324
IEP Team must review IEP annually
Encouraged to consolidate with reevaluation meeting & other IEP Team meetings
Revising IEP: 2 methods
Entire IEP Team at formal meeting & redraft entire IEP
After annual IEP meeting for School Year, parent & LEA can agree not to convene meeting for changes
Can develop written document to amend/modify current IEP
But, at parent’s request, must provide redrafted version with amendments incorporated

37. IEP compliance Two part test (Rowley, 458 U.S. 176 (1982))
Has the State complied with the procedures set forth in IDEA?
Is the IEP, developed through the IDEA’s procedures, reasonably calculated to enable the child to receive educational benefits?
Not required to maximize a student’s educational performance.
Instead, provide a “basic floor of opportunity” or more than de minimus.
Supreme Court case argued this January (Endrew)
Addressed perceived split among federal courts as to whether a higher standard is necessary.

38. OSEP Letter (Sept. 2013)
LEA policy requiring parents to submit concerns in writing in advance of IEP meeting is inconsistent with IDEA.
If parent requests written response, LEA may take “a reasonable time” to respond.

39. Best Practices Hold IEP meeting whenever:
Student not making progress
Behavior incident (BIP?)
Concerns about IEP raised by any IEP team member (including parent)
Written policies and procedures on scheduling meetings – define reasonable attempts to contact parent
Staff training on policies and procedures
Review and revise, as appropriate, written meeting notes before finalizing
Document parent agreement and that all concerns and questions have been addressed
Plan and prepare, but do not “predetermine”

40. Documentation

41. The Basics IEPs Current PLOPS Appropriate annual goals Evaluations
Meeting Notes
Service Tracking Logs
See EDGAR § (grantees and subgrantees must maintain records to demonstrate compliance with all program requirements)
Where and how are these documents maintained?

42. Prior Written Notice 34 C.F.R. § 300.503
Must be given to parents if the LEA proposes or refuses to initiate or change the following:
Evaluation of a child,
Identification of a child,
Educational placement of a child, or
Provision of FAPE to a child.
Notice must include: reasons for action or refusal and available procedural safeguards

43. Progress Data Progress Reports
Detailed information on progress (or lack of progress) on each goal
How often?
Testing Data
State Tests
Academic Achievement

44. Behavior Data Behavior tracking logs Behavior Intervention Plan
Incident Reports
Suspension/Expulsion records
Letters re: Discipline
Align general disciplinary communications with IDEA requirements
Clearly indicate what the process is for students with disabilities

45. Communication with Parent
Letters
Phone Log s
The single biggest problem in communication is the illusion that it has taken place.
- George Bernard Shaw

46. DISCIPLINE

47. What to do when a Child is Disciplined 34 C.F.R §§ 300.530- 300.536(d)
ASK: Is the child identified as a child with a disability?
If the answer is “NO”, then IDEA Protections do not apply (34 CFR § (d))
If the answer is “YES” Ask:
Does the Discipline constitute a “Change in Placement”? (34 CFR §§ )

48. Was the Removal a Change in Placement? 34 CFR §§ 300.530 – 300.536
A Removal is a Change in Placement when: (34 CFR § )
Exceeds 10 consecutive school days
Series of short-term removals that are a pattern
Special Circumstances
45-day removal – drugs, weapons, serious bodily injury to another (34 CFR § (g))
Hearing officer removal - 45-day removal requested by LEA through due process b/c substantially likely to injure self or others in current placement (34 CFR § )
Parent Notification (34 CFR § (h))

49. Was the Removal a Change in Placement? 34 CFR §§ 300.530 – 300.536
A Removal is NOT a Change in Placement When: (34 CFR § )
10 consecutive school days or less
Series of short-term removals that are not a pattern (even if greater then 10 days)
Determined by the public agency, but subject to review through due process (34 CFR § (a)(2))
(a) Length of each removal; (b) Total time removed; (c) Proximity of removal; (d) Behavior not substantially similar; etc.

50. Fact Pattern:
D.R. is a second grader with an IEP and a primary disability of ED. Last Tuesday, D.R. and a friend were drawing during an after-school enrichment program held by the school. D.R. realized that small pencil sharpener had a blade in it. After a little finagling, D.R. was able to remove this blade and began to pretend to have a sword fight with his friend. The play sword-fighting quickly turned south and D.R. accidentally cut his friend’s finger. D.R.’s friend required three stitches.
Believing that D.R. had used the blade as a weapon to cause serious bodily injury, the school removed D.R. for 45 days.
Question: Was the school justified in removing D.R. for 45 days?

51. Was the Removal a Change in Placement? 34 CFR §§ 300.530 – 300.536
Change of Placement?
No: Done (document decision) (possible exception 34 CFR § (d)(4)) (Interim Services)
Yes: Manifestation Determination (34 CFR § (e));
Functional Behavior Assessment; and
Behavior Intervention Plan (34 CFR § (d)(1)(ii), (f)(1)(i))

52. A Manifestation of the Child’s Disability? 34 CFR §§ 300.530 – 300.536
Was the behavior a Manifestation of the Child’s Disability? (Decided By IEP Team)
No – Stay Put does not apply (34 CFR § (c))
Yes – Manifestation Determination (34 CFR § (f))
Stay Put: Child Remains in School
Exceptions 45-Day Removal

53. Fact Pattern
A.D. is a student diagnosed with ADHD and found eligible for special education and related services with a primary disability of OHI. One day in class, A.D. begins to repeatedly poke another student with a pencil, which causes a fight. The teacher sends A.D. to the principal’s office to chill out. Within ten minutes of entering the principal’s office, A.D. begins talking loudly with another student and is removed to an empty special education meeting room.
While in the SPED meeting room, A.D. sits calmly for 10 minutes but then, angry at being sent out twice, gets up and flips over the SPED director’s chair. He is then calm for another 10 minutes before knocking everything except the laptop off the director’s desk. Once discovered, A.D. is suspended for 3 days, which brings his total days suspended over 10.
Question: At the MDR meeting, can the school legitimately state that A.D.’s actions were not a manifestation of his disability?

54. Are Services Required? 34 CFR § 300.530(d)(4) & (d)(5)
If not a change of placement: MAYBE
10 day rule: no services required for first 10 school days of disciplinary removal in school year
LEA can always decide to provide services even when not required
“So as to enable the child to continue to participate in the general education curriculum, although in another setting, and progress toward meeting goals in child’s IEP”
If a change of placement: YES (34 CFR § (d))
IEP team decides on services (allow child to continue to participate in general education curriculum, although in another setting and progress on IEP); services mandatory
Exception: 45 day removal

55. Protections for Children Not Determined Eligible for Special Education and Related Services
34 CFR (a)-(b)
WHERE:
Parent expressed in writing that child had need for special education
Parent requested an evaluation
School personnel expressed specific concerns to the director of special education or other supervisory personnel
HOLD MDR and Determine if discipline will amount to a change in placement
EXCEPTION: 34 CFR (c) These protections do not apply to a child whose parent has refused consent for an evaluation or consent for services, nor does it apply to a child evaluated and determined not to be a child with disabilities

56. Questions?

57. Legal Disclaimer
This presentation is intended solely to provide general information and does not constitute legal advice or a legal service.  This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct.  Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC.  You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.