1. Patricia R. Andrews Andrews & Price
Special Education
Patricia R. Andrews
Andrews & Price

2. History
1972-PARC Consent Decree Challenged the education of mentally retarded students in PA
Agreement to provide educational services to all children
Established 1st due process hearings to challenge program
Hearings very simply
Districts usually prevailed

3. History 1975 – Public Law 94-142 Modeled after the PA scheme
No major changes for PA
Hearings more complex
New issues
Advocates
Some lawyer involvement

4. History 1986 – Smith v. Robinson U.S. Supreme Court Case
Held no attorney’s fees available for prevailing parties under P.L

5. History 1988 – Protection for All Handicapped Children Act
amended to provide for attorney’s fees for prevailing party
Only for parents
No meaningful substantive changes
Parent lawyers now come on scene
More complex and longer hearings

6. Major cases Amy Rowley v. Hendrick Hudson S.D.
Deaf student requesting an interpreter as part of educational program
Holding:
Substantive: children are only entitled to an appropriate, not best, program
Procedures: cannot have substantively appropriate program if procedures not followed

7. Major cases
Oberti
Down Syndrome child requesting inclusion in the regular education environment
IDEA adopts the Court’s decision
Holding: Children are entitled to be educated in the least restrictive environment
Children educated with nondisabled peers to maximum extent appropriate
Must provide supplementary aides and services to allow inclusion to be satisfactorily achieved

8. Major Cases Gaskins Consent Decree In the process of being finalized
Emphasizes requirement of IEP Team to appropriately consider LRE before making placement determinations
Monitored by PDE

9. Major cases W.B. v. Matula Third Circuit
Holding: school districts can be liable for monetary damages as well as compensatory damages
Every other circuit has held the opposite

10. History 1997-IDEA 1st meaningful substantive changes in 22 years
Reauthorization finalized in 2004
Effective July 1, 2005

11. IDEA Incorporates the holdings of PARC, Rowley, Oberti
School must identify all children with disabilities and provide FAPE
FAPE is an individualized education program designed to meet the needs of the child that is reasonably calculated to provide meaningful educational benefit
Procedures must be followed
Education must be in the least restrictive environment
Parents have due process rights

12. IEP Team The IEP Team is the decision maker under IDEA
Responsible for developing, reviewing and revising an IEP
There are no individual decisions

13. Required Members of the IEP Team
IEP Team includes
Parents
At least 1 regular education teacher of the child
At least 1 special education teacher of the child
LEA
Qualified to provide or supervise the provision of SDI; is knowledgeable about the general curriculum; is knowledgeable about the availability of resources of the public agency

14. IEP TEAM ATTENDANCE
An IEP team member shall not be required to attend all or part of the IEP meeting if the parent in writing and the LEA agree that 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 at the meeting
DOCUMENT!

15. IEP TEAM ATTENDANCE
An IEP team member may be excused from attending all or part of the IEP meeting when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services if the parent in writing and the LEA consent to the excusal and the member submits, in writing to the parent and Team input into the development of the IEP prior to the meeting

16. IEP TEAM ATTENDANCE Is this really helpful?
This provision requires written documentation – do not forget this step – cannot just leave!
Does this take more time than just attending the meeting itself?
RECOMMENDATION: As a general rule, the required members of the Team should be present throughout the meeting – this provision should be the exception to the rule.

17. AMENDING THE IEP Changes after the annual IEP meeting:
Parent and LEA may agree not to convene an IEP meeting
Instead may develop a written document to amend or modify the current IEP
Can still hold a full team meeting
Parent shall be provided with the revised document

18. AMENDING THE IEP RECOMMENDATION: Too many pitfalls:
Must document the agreement – takes time
Are all teachers notified of changes?
Are parents truly aware that a change is being made to the IEP?
GENERAL RULE: Hold the IEP Team meeting! This should be the exception to the rule.

19. AMENDING THE IEP
Changes can be made by amending the IEP rather than by redrafting the entire document.
Document this clearly to avoid confusion
Provide parent with a copy of the changes

20. IMPLEMENTATION
Once IEP is agreed to, must be appropriately implemented
IEP is a legally binding agreement
IEP Team agreed that the items in the IEP are the required special education services to provide child with FAPE
Entire IEP must be followed
Cannot chose “portions” of IEP to implement
As the LEA – must monitor implementation

21. “Why should I care?”
Extreme-Doe v. Withers-Teacher held personally liable for money damage for failing to implement the IEP. (School insurance did not cover him).
This teacher actively refused to implement the specially designed instruction even after administration cited him.
Court reasoned that this was sufficiently egregious conduct to defeat claims of immunity.
Jury returned verdict against high school teacher for $5, compensatory and $10, punitive.

22. Why Should I Care? Discipline - 24 P.S. § 11-1122 Incompetency
Unsatisfactory Rating
Persistent negligence in the performance of duties
Willful neglect of duties
Failure to follow District Policy or Administrative directives

23. Understanding LRE
“Children placed in special education are general education children first”
President’s Commission on Excellence in Special Education

24. Understanding Least Restrictive Environment
Inclusion is not a legal term-LRE is the law.
Legal mandate that disabled children should be educated, to the maximum extent appropriate, with their nondisabled peers.
Presumption is that children with disabilities are to be educated in regular classes.

25. LRE
Shift in emphasis!
Prior to 1997 IEP explained the extent a child would be able to participate in reg. Ed. now an IEP must explain the extent the child will not be placed in regular ed. and why.

26. LRE
Determination of educational placement made by the IEP Team – including the parents!
At least annually
Team must assure that child is removed from regular education environment only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aides and services cannot be achieved satisfactorily
Is the child making progress?

27. Prior Written Notice A NOREP must be issued to the parents if
The District proposes to initiate or change the educational placement of a child with a disability
Parents must agree, on the NOREP before a change of placement can occur
Verbal consent is not sufficient
CANNOT CHANGE UNILATERALLY!

28. Why Should I Care? Little Mistakes Lead to Big Problems Due Process
Time Consuming
Adversarial
Damages
Compensatory education
Tuition reimbursement
Money
Discipline
In the job and personally

29. Why Should I Care? Avoid problems by following IDEA’s procedures
Remember: IEP Team makes all final decisions
Remember: Parents part of Team
Remember: Obtain parental consent through a NOREP for every change – no matter how small
Remember: IEP must be fully implemented