Avoiding Litigation-Special Ed Edition 8.18.14

Avoiding Litigation…
AUGUST 18, 2014
What shouldn’t be said in IEP meetings…
 “We don’t serve students with behavior needs here”
 “We can’t afford that piece of equipment”
 “We never provide one-on-one assistants”
 “We don’t think it’s appropriate, but if you (parent)
want it, we’ll put it in the IEP”
 “We give all students with autism this amount of
 “We only allot 45 minutes per IEP meeting”
Schedule an IEP meeting when…
 the IEP is said/believed not to be meeting the needs
of the student (whether by parent or staff)
 a Release from District Education Services request is
made claiming the student’s needs aren’t being met
by the current IEP
 the IEP needs to be addended or revised
Free Appropriate Public Education is denied when:
 a parent is not allowed meaningful participation in
an IEP meeting
 the IEP services are not individualized to specific
 the IEP progress reports are not shared with parents
per the IEP schedule
 the IEP is insufficiently implemented
If a student is exhibiting challenging behaviors
 involve IEP team in conducting a Functional
Behavioral Assessment
 developing a Behavioral Intervention Plan
 BEFORE suspensions accumulate to more than 10
RtI PSM Guidance
 Ongoing PD
 To foster consistency, reducing liability
 To maintain focus on:
Prevention of disproportionality
 Prevention of inappropriate identification
 Decreasing special education referrals (disability vs instr casualty)
To respect the process so that the focus is upheld
Distinguish between “informing” of right to request evaluation vs
“encouraging” to request evaluation
To understand suspicion of a disability
Speaking of Evaluations…
 Request for evaluation
 When there’s debate, evaluate
 Refrain from suggesting parents are responsible for
obtaining educationally-relevant evaluations
 Use a variety of assessments to identify presence of a
probes/norms in conjunction with other data as needed (i.e.
standardized or nationally-normed assessments as determined
by the team)
“We have to meet by, WHEN?!?”
(aka…Compliance with Timelines)
 90 days
To complete initial assessment (all components necessary to make
eligibility determination)
To determine eligibility
To develop IEP when eligible
 Annual Reviews
 3-year Re-evaluations
…not able to defend this denial of FAPE
Educational Performance
 Academic performance
 Grades, EOG/EOC scores, etc
 Functional performance)
 Communication deficits (i.e. students with Autism)
 Social/behavioral deficits
…”any” negative impact is upheld by courts, not required to
qualify as “substantial”/”significant”/”marked”
Need for specially designed instruction?
 IDEA requires 3 prong eligibility:
disabling condition that…
adversely affects (harms) educational performance
to the degree that the student needs special education (and
possibly related services)
 Use multiple data sources
 Not special ed w/o an IEP
 PSM plans have to be transitioned away from Sp Ed staff to
avoid liability
 Implement IEP (incl BIP) as written
 Avoid costly private school placements
“Predetermination” vs Preparedness
 Predetermination: appearing to deny parental input
into educational decision-making
Parent can lose trust in school staff/process
Can often result in court finding a denial of FAPE
 However…being prepared and having drafts are not
For discussion only… not to be presented as final documents
Must ensure full discussion of all aspects of IEP
Come with an open mind, but not a blank mind 
Availability/Cost of Resources?
 Avoid comments/discussion in IEP meetings about
staff or resources available
Communicate with Liaisons/Director when in need
 Make IEP recommendations/decisions based on
individual student needs…
NOT on cost of resources
NOT on availability of resources such as staff, schedule
IEPs must drive schedules, not vice versa.
“Feet under the table”
 Ensure proper attendance at IEP Meetings
 Parents
 General Education Teacher (at least one)
 Special Education Teacher (at least one)
 LEA Representative who
is qualified to provide/supervise provision of Special Education
 is knowledgeable about general curriculum
 is knowledgeable about the availability of resources
 Liaisons and psychologists should not be used as LEA Reps
 Required for entire meeting, or meeting must be
stopped… no defense for this denial of FAPE
Placement Recommendations
 Finalize and Formalize placement recommendations
 Discuss in an IEP team meeting
 Meet even if parents say they are in disagreement over
 Document all proposals and refusals in prior written notice
section (last) section of the IEP document
 Call for IEP meeting
 if there is any doubt about appropriateness of the IEP
 if there is any doubt about the ability to implement the IEP
Avoid being “Witherish”
 “Although the IDEA provides that student success is
not guaranteed, it IS required that teachers engage in
good faith, reasonable efforts to implement the
provisions of an IEP.”
 “Willful and intentional violations of the IDEA can
lead to the possibility of personal liability.”
 $15,000 for compensatory and punitive damages
LRE = open-mindedness
 Schools are obligated to provide a variety of services
to students with unique needs by cross-trained staff
 Maximum service programs are for maximum needs,
after all other less restrictive options are exhausted
 Support staff can assist along the way to build
teacher capacity, not only to problem solve
Expected Outcomes
 Reduced liabilities
 Compliance
 Curriculum
 Behavior
 Increased support to teachers through coaching
 Increased outcomes on state reporting for LRE
 Increased responsiveness to parent concerns
regarding academic and behavior issues
 Increased student achievement!
Thank you for your teamwork
and partnership!

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