Avoiding Litigation-Special Ed Edition 8.18.14

Report
Avoiding Litigation…
THE SPECIAL EDUCATION EDITION
AUGUST 18, 2014
HTTPS://TODAYSMEET.COM/AVOIDINGLIABILITY81814
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
service”
 “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
FAPE…
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
needs
 the IEP progress reports are not shared with parents
per the IEP schedule
 the IEP is insufficiently implemented
Discipline…
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
days
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
disability

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:
1.
disabling condition that…
2.
adversely affects (harms) educational performance
3.
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
prohibited



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
flexibility

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
proposal
 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!
Questions?

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