1. Common Legal Mistakes Districts Make
Trish Andrews
Andrews & Price

2. Procedural/Substantive violations
Rowley v. Hendrick Hudson S.D.
U.S. Supreme court
Procedures just as important as substance
Procedural violations can result in a denial of FAPE

3. Procedural/substantive violations
IDEA 2004
Hearing Officers must find that the child was denied FAPE
Did not make educational progress
Decision cannot be made on procedural violations alone
Does Not mean that procedures are no longer important

4. Procedures - Timelines
Parent does not return signed Permission to Evaluate
Don’t just ignore
Prove that we made an effort to get back
Do we believe child needs evaluated?
May need to go to due process
Otherwise, may have child find violation

5. Procedures - Timelines
Parent will not agree on an IEP date
IEP must be completed within 30 calendar days of ER or at least annually
Don’t schedule date for IEP on 30th day
Hold meeting without parent to maintain timeline
Provide with copy of IEP
Offer to hold follow up meeting at a later date

6. Procedure - Timelines Parent does not show up at IEP
If you have time, reschedule
If not, call parents
Hold meeting without them
Just have to show we made attempts to have parents present
Send IEP
Offer to hold follow up meeting at a later date

7. Procedures - Timelines
Parents attend IEP meeting, but refuse to agree to anything
Don’t let parent scuttle timelines
Take control of meeting

8. Procedures - Timelines
Parents are equal participants at IEP meetings
But are not the supermajority
Should be open discussion regarding child’s program
Parents should make joint and informed decisions regarding child’s program

9. Procedures - Timelines
Team should try to work toward consensus, but
It is the district’s ultimate responsibility to ensure that the IEP includes services child needs to receive FAPE
If Team cannot reach consensus with parent
Make offer of FAPE
Issue NOREP
Parents have right to institute dispute resolution

10. Procedure - TImelines What if school team members do not agree?
District’s responsibility to ensure FAPE
But must be able to defend program at due process
Need witnesses
If members of Team disagree, may be hard to prove that District’s offer is FAPE

11. Procedures - Timelines
“This IEP meeting should only take 30 minutes”
Make sure to schedule sufficient time for IEP meetings
Don’t have to let the meeting go on for hours, but
Take into consideration that parent may have an issue to discuss

12. Procedures This leads to next issue:
May need to allow more than 1 period for an IEP Team meeting
Members cannot simply leave to go back to class

13. Procedures – IEP Members
Required members remain:
Parent
LEA
Special education teacher
Regular Education Teacher
General Rule:
Must be present at ENTIRE IEP meeting!

14. Procedures – IEP Members
IDEA 2004
Does allow some members to be excused
Requires written parental consent
Proposed Regulations:
LEA is not permitted to leave

15. Procedures – IEP Members
When can a member be excused
the team member’s attendance is not necessary because the member’s area of the curriculum or related services is not being modified or discussed
when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services if the member submits, in writing to the parent and Team input into the development of the IEP prior to the meeting

16. Predetermined Placements
District cannot finalize placement decisions before the IEP meeting
Placement decision should be made based upon the goals and SDI in child’s IEP
Therefore, develop the IEP, then ask:
Where can this IEP be implemented

17. Predetermined Placements
Placement decisions are particularly important in light of Gaskins
Should be a thorough discussion and decision at meeting

18. Placement Decisions Placement based upon child’s needs
Cannot be based upon availability of service
Cannot be based upon cost

19. Refusing a parent request
NOREPs are issued when district makes a recommendation
Districts do a good job of issuing for changes
Also issued when district refuses a parental request
Many districts overlook issuing for refusal

20. Inadequate IEPs Remember what IEP must do: What is FAPE
Must be designed to provide child with FAPE
What is FAPE
An educational program that allows a child to receive meaningful educational benefit
What is meaningful educational benefit?
PROGRESS!

21. Inadequate IEPS PELs must show progress Set baselines
When developing next year’s IEP, review baseline established in PELs
Document in next year’s IEP how the child has improved from baseline
Discuss skills that the child has learned
Compare those skills to baseline

22. Showing progress Mistake: Comparing apples to oranges
Again: progress is the cornerstone of FAPE
Helpful to show more than just subjective opinion of progress

23. Showing progress
One way of showing progress is through standardized assessments
Often an assessment is given to determine baseline
This is good!
But, then either no assessment or a different assessment is used at the end of the year
Nothing to compare
Use consistent assessments to show progress

24. Failing to hold IEP meeting
What if there is no progress?
IDEA requires IEP meetings to be held at least annually
More frequently if the child is not making appropriate progress
Highlights importance of progress monitoring

25. Failing to Hold IEP Meeting
If no or little progress is shown
Schedule an IEP meeting during year
Review and revise IEP
Must address areas in which child is failing to progress

26. Methodology Remember that it is the District’s preference
Parents may be able to chose methodology if child fails to appropriately progress
Carefully monitor progress
Be aware of child that stays at 3rd grade reading level for 3 years

27. Changing Placement without changing IEP
LRE: child is expected to be educated with nondisabled peers
Cannot change placement if child is making progress
If child is not making progress
Must be able to show that the district has made every effort to educate child in LRE
Several IEP meetings
Numerous revisions to IEP

28. Request for IEE
Mistake: Failure to request due process if parents request IEE
Parents have right to ask for IEE at public expense
If that occurs, district has 2 choices:
Agree to pay
Request due process
Provide our evaluation is appropriate

29. Restraints District may use passive restraint if:
Child is in danger of harming himself or others
Use of restraints shall cause a meeting of the IEP Team
Review BIP to prevent behavior from occurring.

30. Manifestation Determinations
Mistake: predetermining outcome
Manifestation determinations involve parent and LEA and relevant members of IEP Team
All parties are to have input
Decisions to be made after input is provided