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Strategies for Navigating the World of Special Education Law

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Strategies for Navigating the World of Special Education Law

This program will briefly discuss the purpose of the IDEA and the standard for individualized education programs (IEPs), and will discuss more in-depth the sections of IEPs and what they should entail. This program will also cover evaluations, and what districts are required to do, as well as parent’s rights. The program will be New York based, but New York’s regulations strongly mirror federal law, and differences will be noted. It will also cover updates in special education law, including the COVID pandemic and its impact. This program will benefit new attorneys to the special education field, and attorneys who are seeking to better understand what an IEP is, how it is created, and what it is based on in order to be appropriate.

Transcript

- Hi, everyone, I'm Alison Morris. I'm a Senior Attorney at the Cuddy Law Firm where we do special education, advocacy and litigation and special needs planning. And we're here to talk about strategies for navigating the world of Special Education Law. Before we get started, this is Federal Law IDEA, the Individuals With Disabilities Education Act, and New York focused. It will point out those differences, but you wanna make sure you're looking at your own state's regulations. So that's really important. I wanna highlight that again, your own state's special education regulations are critical. And so if you are in a state, in New York, outside of New York, you wanna make sure you're really looking at those. Without further ado, let's begin, turn to your first slide, updates in special education law. The first thing we're gonna talk about is on June 13th in 2022, in New York, there was a law passed that allowed for students with IEPs, Individualized Education Programs who aged out of school during this past 21/22 school year to be able to remain in school until they turn 23. However, as you can see in the slide, it's a permissive statute. School districts may provide educational services this coming school year and the following school year to those students. There was a similar bill last year that also had that permissive language, which is a bit of an issue as you can imagine. A second update, the next slide is a supported decision making statute that passed in New York on July 27th, Bill S7107B/8586 was signed into law for supported decision making. New York now joins these several other states who have passed supported decision making laws. This is something that's on the continuum of options and alternatives for individuals when they are turning 18 if they have intellectual and developmental disabilities. Once they turn 18, they are adults in the eyes of the law. Do they need a guardianship? Are they able to do advanced directives? And now there is this other option, supported decision making out there for them. Your next slide has important cases that if you are just getting into special education law or if you are in special education law and wanna refresher, these are really the cases to be aware of and to know about. Andrew F, we are gonna talk about, this is the Supreme Court case from 2017 setting the standard for what is an appropriate IEP. The next three cases, Burlington, Carter and Connors set out the tuition reimbursement standards and the three prongs you have to meet for tuition reimbursement in private placement cases, including in Connors' cases, where instead of parents being reimbursed, payment can go directly to the private school if the parents aren't able to directly pay that tuition. Atlanta Independent School District, affirming that you can use this type of relief as compensatory education. RE, that second to last one is really a critical case. Second Circuit case adopting this snapshot rule, saying that you need to look at IEPs at the time they're created. You cannot bring in retrospective testimony that changes that snapshot image about what would have been done or could have been done. You have to look at the IEP at the time it was created. And this last one is a second Circuit case that our law firm actually won, talking about how the IDEA does not allow a school district to unilaterally amend an IEP during the 30 day resolution period after you file a due process complaint. So critical cases to read if you're just getting into this area of law to really provide a framework for this area. Your next slide is we need to start talking and getting an understanding of the IDEA. What is that? What is the Individual Disabilities Act? And this slide, you see three bullet points, and these really are key takeaways. One is that it ensures a free and appropriate public education. That comes from 20 USC 1412, also 34 CFR 300, letting us know that school districts have to provide a free and appropriate public education. That's what that FAPE is. If you're hearing them use that acronym or abbreviation, students are entitled to a FAPE, that's what they're saying here. In New York, that burden is on school districts 4404 of education law. So again, you wanna make sure you're looking at your own states laws and regulations, 'cause the Ida itself is silent as to that burden. In New York it is on the school district. There's an emphasis that services are designed to meet the individual needs of the student. If there's a takeaway here, that is it. Whether you represent school districts or you're helping parents and families services have to meet the individual needs of the student. And there's also a preference for the least restrictive environment. You can see this in CFR 300.114. We want students integrated with typically developing peers to the greatest extent appropriate. If they need something more restrictive based on their individual needs, buzzword, then that's what they need. But if they can be in general Ed classes or lunch or gym or music or art or specials with typically developing peers, then that's where they need to be. In addition, the IEPs have the right to remain in school through the age of 21. And there's also a two year statute of limitations for special education cases if you're bringing a due process complaint. There are some tolling exceptions in very few circumstances. So if there are issues, claims that are actionable, you really wanna make sure you're taking action as soon as possible. Again, especially if you're helping and representing families. Again, and if you're for a school district and letting families know if they feel that there are issues, that there is a timeline with which they can bring any claims. It's also really important to know the purpose of the IDEA. In the definition section in 1400 D1A and it's reiterating 34 CFR 300.1A, they're telling you the purpose of the IDEA, that's the next slide. It's number seven that says, yes, it is to provide that FAPE to students so that they can get special education and related services to meet their buzzword unique needs. But it's also to prepare them for further education, employment, and independent living. So it's really important if you are in a school district and representing school districts, you're making sure that you're also helping students be prepared for postsecondary education, employment, and living. And not just focusing on the in-school academics and that life. And similarly, especially if you are representing families that you're highlighting this at IEP meetings, Individualized Education Program meetings as well. So the student's holistic needs can be trust. And so what are some red flags. Or what are some issues that might tip you off that something here might not be right? And one, those first three on the next slide are, if they're missing evaluations, if the assessments aren't accurate are not done timely or not done at all right, that's gonna be a huge issue. And you're gonna see why. Similarly, if goals for the student are just cut and pasted. Again, buzzword, they're not individualized. They're just taken and pasted from IEP to IEP, really regardless of the student's individualized needs. And we're gonna see why that's gonna be so critical in a little bit. So if you go onto the next slide, Individualized Education Program is the header. We're gonna talk about what this means. So your student is eligible for special education programs and services under the IDEA, then they are entitled to an IEP, an Individualized Education Program. Well, what does that mean? What is the standard, whether that IEP is appropriate? We get that standard from that Andrew F. case, that IEP has to be reasonably calculated to enable the student to make meaningful progress in light of their circumstances, then it's appropriate. And well, what does that mean? Well, it means it requires more than trivial progress. We need the student to make meaningful progress and what's meaningful progress for one student may or may not be meaningful progress for another student because everything is buzzword personalized to each student's unique needs. It's meaningful progress in light of their that's student's circumstances. So there's some additional materials I provided Letter to Clark in 2007, you can also look at Letter to Zacko that highlight this as well. It's also really important again, whether you're helping families or whether you're representing school districts, to know that it is not the district's burden to maximize benefit or provide the best. They have to provide what a student needs in order for them to make progress. They don't have to provide the best. They don't have to maximize benefit or potential. So it's really important to know and understand that difference. On the next slide, we're gonna get into the different IEP sections. If you represent families and you have students who are getting IEPs or you're in a school district, it's really important to know about these different sections, what they mean, and what the school district needs to be doing here. And you wanna make sure that these are all gone through. Sometimes some school districts can take things for granted. If you represent the school district, you really wanna make sure they are going through all of these. And if you represent the family, similarly, you wanna make sure that this parent understands every part of this document. The first part of an IEP at the top is gonna be the classification, the implementation date of the IEP and the evaluative information reviewed. So the implementation date is when is this IEP good for? Maybe you have an IEP meeting in May. And you think that this IEP and the changes you talk about are gonna start immediately. The rest of May, June, and then also summer services are these changes. Well, if you get that IEP and you see the implementation date, the start is September. Well now you know that nothing is changing immediately. If new services were started or there was an increase in services, you might wanna now know that you need to talk to the school district if you wanted those to start immediately, or that was your understanding. It's also gonna list all the evaluative information reviewed. You wanna make sure you review that, was everything discussed listed? Is it listed correctly? Is anything listed that you didn't go over that needs to be reviewed? Are documents that you gave to the district? And you talked about not on that page and need to be added. You wanna make sure everything is correct. One of the most important things here is that classification. So in order to be eligible for an IEP, you need to meet one of 13 disability classifications. That's the federal standard. So your state might have 14, 15, 16. You can give more, you can't take away. New York, very closely mirrors the IDEA. And so classifications mirror the IDEAs in New York. So you need to meet one of those 13 disability classifications and the disability has to be impacting your ability to make progress. And so diagnosis is not classification. So if you speak to someone and you say, what is your child's classification on their IEP? And they say dyslexia or ADHD, those are diagnoses. Those are not classifications. Some classifications include autism, intellectual disability, speech language impairment, which are communication disorders, learning disabilities, which include dyslexia, dysgraphiand and dyscalculia, multiple disabilities, other health impairment, which encapsulates attention deficit, hyperactivity disorder, emotional disturbances. So you wanna make sure that the classification matches the issues. What is impacting the student's ability to make progress? If the student has autism, you really wanna make sure that that's the classification. Sometimes districts will say speech language impairment, or other health impairment. But if the student is autism, you really wanna make sure it says autism for a few reasons. One, there are some certain additional things that might come along with that. In New York, there's additional protections that come along with that classification, but also you want that classification to match. If it just says other health impairments, they might pick up that IEP and say, this is just a student with ADHD. They might not understand this is a student with autism. We need to make sure we're careful regarding sensory things regarding social pragmatic skills. So when you pick it up that classification really is the first thing that individuals, teachers, substitutes, related service providers are seeing. It really needs to be accurate and match the reason. What if someone has more than one diagnosis and might be able to be classified in more than one category? Well, then you wanna make sure it's the classification that's the one that's most impacting the student's ability to make progress. Or maybe the student has a learning disability and Attention Deficit Hyperactivity Disorder, ADHD. So they could be classified under Other Health Impairment, OHI. Well, if it's really the in attention and the ADHD that's causing the issues, no one's discounting the dyslexia or the learning disability, but really it's the ADHD. Then the classifications should be other health impairments. It should be noted on the IEP that the student also has dyslexia and they will get the services they need, regardless of classification. Everything's based on what the student needs, but we want that classification to be accurate. The next section are the present levels of performance, and there's four, there's academic, physical, social, emotional, and the management needs. These are critical. We need these to be detailed. We do not want these to be vague. I'm not saying that they need to be 30 pages long, I know some states do that. We want them to be detailed though. We don't want it to just say, Johnny tries his best and is making some progress, but he still has some issues. We wanna know Johnny's in third grade, reading at a first grade level, he has difficulty writing sentences with appropriate spelling and capitalization. He's reading at a first grade level, but he is going into third. He can do single digit addition. He has difficulty with double digit subtraction. We want those details for two reasons. One, goals are based on present levels of performance. So if we don't have those details or that information, we're gonna necessarily get goals that either aren't there. We're not gonna get a goal where we need one, 'cause the information isn't there or because the information is vague. We're not gonna get the goal. That's as tailored to the students needs it needs as it could be. We might get a math goal, but it might not be the math goal that's really addressing the student's needs so they can make progress. The second reason we need these to be detailed is because this is another way we can measure progress. If every year on the IEP we see Johnny's at a first grade reading level, Johnny's at a first grade reading level. Johnny still cannot write a topic sentence, Johnny doesn't understand grammar and punctuation and cannot do end punctuation. And every year we're seeing that. we know he's not really making progress and something probably needs to change. If we go back and look at the IEPs in one year, it's Johnny cannot write a topic sentence and doesn't understand ending punctuation but the next year he can do that. Well now we know some progress has been made and this program might be addressing his needs. We also wanna make sure that these present levels are talking about academic and functional issues. That social, emotional, how are their social skills? What are their sensory issues? Is there a bullying going on? We want to know this information so we can create an appropriate plan. The next section are special factors. Do they need a behavior plan? Do they have limited English proficiency? Do they need assistive technology? If so, do they need it at home and in school? Again, sometimes in school districts, take this for granted and don't go through this. If the student doesn't have visual impairment, if they already aren't recommended for assistive technology, they might just check off, no, but if you're with the school district or if you're there for a family, you might need to talk about, well, wait a minute, the student doesn't have a behavior plan, but they might need one. We need to talk about that. The student doesn't have assistive technology, but they might need to be evaluated for it. Let's talk about that instead of just checking off, no, and moving forward. On the next slide it's IEP sections continued. The first one is a transition plan. So transition planning is the year a student turns 16 under Federal Law, 15 in New York state. So again, you wanna make sure you check your state's regulations from special education. The year they turn 16 Federal Law, the school district has to begin planning for their life after high school. What do we have to start doing now to get this student as prepared as possible for life after school, in the areas of post-secondary education, employment, and independent living? And how this works is, it's like a second present level of performance section where very umbrella, like we talk about what are their goals for postsecondary employment, postsecondary, education, postsecondary living? Do they wanna be a doctor? Do they wanna be a policeman? Do they wanna work with animals? Do they wanna go to college? Do they wanna go to a vocational school? Do they wanna go to a college like their sibling, even though that might not be attainable for them, do they wanna live in a dorm? Do they wanna live at home? Do they wanna live with their girlfriend or boyfriend in a house? Even if that's not attainable, it's what they wanna do. And then the district needs to add specific goals to the IEP, to help the student meet those broad goals. So even if they might not be able to live in a house on their own, they can still create goals to help them work towards that. Do they know how to do laundry? Do they know how to go to the grocery store? If they wanna be a vet, but that might not be attainable, do they have interviewing skills? Do they have any job training? Maybe they can get an internship in, at an SPCA working with animals. Do they know how to dress appropriately at a job? Those are goals and skills they can still gain. So you wanna make sure there's a transition plan, the year it needs to be in place as per your state. And there's specific goals to help them reach that. The next section is goals. But we'll talk about that in a minute. There's also IEP goal reporting to parents. So because your student, whether you're representing the district or family, this student has an IEP. And that means in addition to getting report cards, just like every other student and any type of progress report the student might get. They're gonna get an IEP goal progress report, meaning they have 12 goals. How are they doing on these goals? Are they making progress? Have they achieved any, are they progressing inconsistently? We need to know. If you're representing the family or the school district, and you see those and it's halfway through the year and they've achieved half or all their goals, you might need to have a meeting because you did not recommend challenging enough goals. Doesn't mean they don't need services. The goals might not have been challenging. If it's halfway through the year and they haven't achieved anything and they're not close to it, not achieving inconsistently. You might wanna have a meeting and see if anything needs to be done. So it doesn't come to the end of the school year and they've not achieved any goals or they have not made progress. Again, everything has to be based on the students. So the next section is the recommended program. We're talking about class size. They need to be in a general education class, normal class. Do they need to be in an integrated co-teaching class, which is a general education class with an additional certified special education teacher. Do they need something smaller than that? A class size of 15 students and one teacher, a class of 15 students, one teacher and one teaching assistant 15/11, do they need it small, more restrictive, 12/11, 8/11, 6/11. What do they need? And again, everything is based on the student's needs. Not what the school can offer. If the student needs and can be in general education or an integrated co-teaching science and math class, 'cause they do very well in it. But they need a smaller class for English and social studies. A lot more writing, reading, abstract thinking, then that's what the student needs. The next section is also accommodations. What accommodations do they need to be on the same playing level as every other student. Do they need modified work? Do they need breaks? Do they need assistive technology? Do they need a one-to-one aid? Do they need any testing accommodations, extra time, a separate location? Do they need a scribe to write their answers for them? They know the information they can do the calculations, but maybe they have a fine motor issue where they cannot physically write the answers. So they need a scribe so the information they know can be correctly tested. The next section is related services. We wanna know what services they're getting, the frequency, the duration, how long and the ratio of students. And again, everything is based on what the student needs, not what the school can provide. If a student needs a service four times a week individually, but a school can only do it twice a week, once individually, and once in a group. A parent can most certainly agree to try that. But if that is what the student needs and the school cannot do it, the answer is that's what the student needs. That's what needs to go on the IEP and placement will be determined later. Do they need individual services? Do they need group services? And here we're talking about related services like physical therapy, occupational therapy, music therapy, vision therapy and services, ABA, applied behavior analysis, counseling services, social skills group. Everything is based on what does this student need. Also, do they need ESY, Extended School Year services? Services during those six weeks over the summer. And that is to prevent substantial regression. If they do not get services, is everything they've learned going to go out the window, essentially. If they don't keep getting academics and/or related services, will they regress? And again, everything is based on the student's need. Maybe they only need academics over the summer. Maybe they only need related services over the summer. Maybe they only need their counseling related services over the summer. They're gonna be okay if they don't get physical therapy or occupational therapy. But if they don't get counseling to help work on their emotional regulation and frustration levels, they will regress by the time September comes around. Then that's what they need to get over the summer. The next slide is the last IEP sections continued. If the student is at the age where they have a transition plan, the back of an IEP is gonna have a coordinated set of transition services. You can see that in IDEA Section 300.143 of the CFR. We wanna know what instruction related services, what community experiences, what prevocational instruction and what acquisition of daily living skills the student is getting and they need. Are they going out into the community? Are they doing travel training? Are they gonna go to the grocery store after they've created a budget and list, go in there, buy it and come back and make lunch once a week. Are they gonna get an internship? Are they gonna learn how to cook clean, do laundry and get to classes by themselves. What are they doing to help reach those goals they have. What's their plan? Also participation in state assessments are alternate assessments. 300.160 and 34 CFR 200.6 also talks about this. So students take statewide assessments, in New York it's the reagents and alternate assess means that a student is gonna be put on an alternate track, their curriculum and their assignments are automatically going to be modified 'cause they are not on that same co-curriculum track. They're still taking and learning about science and social studies and planets and math. But it's not with the goal of learning it because now you're taking that state test at the end. It's modified. Alternate assessment is reserved for the 1% of students in the state who have significant cognitive deficits. So it is not for every student. And that should be a conversation with the district. Again, sometimes some school districts take it for granted that this is a student who will be alternately assessed, and it gets checked off that way. But parents do need to know about it. There's also gonna be a section marked off participation with students without disabilities. If your child is going to be participating in adaptive physical education, or they're gonna be in a special class and they're gonna be removed from typically developing peers, there needs to be a statement on the IEP explaining that and why that is happening. Do they need special transportation? Do they need a bus ride of no more than 45 minutes? Do they need a one to one bus aid? Do they need a harness? Do they need AC in the summer when it's hot because of a medical condition? If they need any type of special transportation, you really wanna make sure you're giving your district a letter from your doctor or something every year. If you're the district, you wanna make sure parents know what they need to get you. The last section of an IEP is placement. And that is because you are supposed to spend the IEP meeting, talking about the student's abilities, their levels, the goals they need, the services they need, the class size they need. And then the last question is, where is the place that can have this program? If it's in the district, great. But if it is not in the district, then they have to send that student out of district. The next slide is talking about evaluations. I told you that these were super important and get excited 'cause now we're gonna talk about them. So you get initial evaluations when you come into the realm of special education, you get initially evaluated to determine, do you need, and do you meet the qualifications for an IEP for special education services? That initial evaluation is made up of a psychological evaluation, a social history that the parents do, a classroom observation and a physical, which the student's doctor fills out. And then it's also comprised of any other assessments needed regardless of the student's suspected disability. That's where evaluations like physical therapy evaluations, speech evaluations, occupational therapy evaluations, ABA, Applied Behavior Analysis assessments, music therapy, vision therapy evaluations. That's where those can come in. After those initial evaluations, the district must evaluate the student every three years, unless a parent agrees to waive those reevaluations, which we would not recommend doing. And it can be more often than that, but it can be more than once a year unless the parent and district agree. They don't want parents having a speechy Val every six months. It's not enough time to obtain data. And it's also often not enough time in between evaluations for scores to be valid. But those initial and reevaluations are critical. These reevaluations every three years are really important. So if you're representing school districts, you really wanna make sure that they are doing them. And if you're representing families, similarly, you wanna make sure these are getting done. You wanna make sure they're getting done in all areas of suspected need and any areas the student is getting services and in any new areas. If the student was initially evaluated, and they got initial evaluations in speech and physical therapy and occupational therapy, and now it's three years later, we don't just want initial evaluations of the social history, psychological classroom observation physical. We want those additional evals. We wanna compare that data. If two years ago, they got speech and OT and physical therapy evaluations and now it's time for the tri, we want them reevaluated as well. We want the data. Think about where you or your child was three years ago. We need the data. And in between those three years, yes, information from the parents and the teachers are really important and it's important every year. But we wanna see that standardized assessment and those numbers to compare with the data. If three years ago, the student was in the third percentile and their expressive language, their ability to communicate, and now three years later, they're in the fourth percentile, that's really indicating not a lot of progress. If three years later and now they're in the first percentile, there's been regression. If it's three years later and now they're on the 17th percentile, they're still below average, but there's been really a lot of meaningful progress here. We know that maybe the program we have is working versus the other two examples I gave that program might not be working and some tweaks might need to be made. So we really need to see that data. We need those reevaluations to know the students need what goals they need and the appropriate amount and type of services they need. And so what evaluations are we talking about? If you go to the next slide, psychoeducational and psychological evaluations, sometimes districts might divide those up. If they do that, the psychoeducational piece is academic testing, reading, writing, math, spelling skills, and the psychological is gonna be a cognitive test and IQ assessment. Another type of assessment is a neuropsychological. Districts are likely not gonna do that off the bat. That is a combination of psychoeducational, a psychological testing. They're gonna do academic assessments, IQ assessments, but they're gonna do more thorough assessments. And the point of it is you're gonna get diagnoses and specific program recommendations. You're usually gonna ask for that. If you don't agree with the initial evaluations or the psychoeducational or psychological evaluation, or there's still lingering questions. You've got those, but maybe there's an inconsistency or we're still not clear what's going on with a student. Do they have a learned disorder? Do they have autism? Do they need a certain class size? Also the related service evaluations. Speech, occupational therapy, physical therapy, applied behavioral analysis, which is used often for students with autism who are lower functioning, but it can also help students who are having emotional and behavioral issues, feeding therapy, music therapy, vision, and audio ideological evaluations. There's also assistive technology and alternative augmentative communication evaluations. So that later that latter one in AAC evaluation, both are under the umbrella of assistive technology. But the second one is gonna be a speech generating device for a nonverbal student. So they, at this point in time need a communication device to communicate for them. An assistive technology device is gonna help access education in the classroom. They need it for graphic organizers. So they need something to help with math, reading, writing, spelling. We need the evaluation to know that. Do they need it? And if so, what device? Again, not just the device, the school district provided is there a different device? That is what they need and what programs they need. We need that information. There's also something called a Functional Behavior Assessment, FBA. And if necessary a behavior intervention plan, if a student is having behavioral issues, this is really critical. Someone is gonna come in, observe them at various points, possibly over a month or months and take data on them to figure out what are the behaviors and why are they engaging in these behaviors? Is it to avoid a hard task? Is it because they're not being challenged enough? Is it because they're seeking sensory input? Are they avoiding work? Do they want attention? And if the behaviors are severe or intense enough, then the individual will create a behavior intervention plan, a BIP, to reduce and eliminate the behaviors. The point is to stop the behaviors from reaching their peak. What can we do to stop and eliminate them to help reduce them? If you represent families or school districts, you can tell families, families should be able to write to the school district if they don't know the specific type of evaluation or they want, but they should be able to describe the issue. And that school district should be able to take from it what type of evaluation they need. My child is having balance issues and cannot write. They should be able to take from that. They need an occupational therapy evaluation. The next slide is talking about annual goals. Again, I told you we would talk about them and get excited because here we are. Annual goals have to be a lot of things. And under the IEDA 1412D, they have to be academic and functional. That is really critical if you're representing families or school districts that they know, these goals are not just to be academic, math, writing, reading, but functional. Issues with daily living skills like eating and zippering and tying shoelaces and toilet training and social skill issues and sensory issues. Those also have to be addressed. And so we want goals that are addressing all of the student's needs and they have to be tailored to the student's needs. That buzz word, individualized, we need goals tailored to each student's needs. We don't want vague goals that really aren't addressing Johnny specific needs, but there's a goal on there, that's vaguely in the area. No, one goals tailored to their needs. I'm not saying there needs to be a hundred goals, but we really wanna make sure that the goals are on there specifically addressing their issue. If a student's in fifth grade or seventh or eighth grade, but they're functioning at a first or second grade math level, having goals on the IEP for them to plot integers and find acts when they're still having issues finding, and knowing the addition or subtraction operation. If you have the goal to find integers, that's not really tailored to their needs, they need that foundational skill. They need those foundational goals that's tailored to their need. We need goals that are measurable. We don't want goals that are compound or subjectively measured. We don't want goals that are based on teacher observation. Sometimes goals need to be, or will be based on teacher observations. Sometimes some goals are going to be compound. It's not a hard and fast rule, but you don't want every goal based on teacher observation based on teacher observation. We want goals based on data. Based on assessment, based on classwork, based on quizzes so that we can see that data too. We can see it and ask for it and get it. Similarly, we don't want too much in a goal. Johnny will write a five sentence paragraph with an appropriate topic sentence, utilizing two pieces of explicit information from the text and will use peer reviewing of editing for capitalization, spelling, and punctuation errors. If he meets that goal, are we saying he met everything? If they say he didn't meet that goal, did he meet any of it? We're not gonna be able to know what Johnny is or isn't doing. That's too much in one goal, it needs to be broken down and likely more tailored to his needs. We also want goals to be meaningful. We don't want fluff goals. We don't want goals just there to be there. And all of this is gonna depend on the student. What's meaningful for Johnny might not be meaningful for Sally. An example I give is my younger brother has special needs. He has an intellectual disability. That's what his IEP classification was. And his last or second to last year, he was 20 or 21. The district wanted to continue him to have a goal, to improve his reading grade level. At that point, that wasn't really meaningful for him. He needed to really be focusing on those transition goals, the social skills, the, the employment, the travel training that was meaningful for him at that point. But that's what was meaningful for him. That same goal might have been and likely was meaningful for another student. So it's meaningful for one might not be being meaningful for another. It's all individualized to each student. So it's really important to keep that in mind. Next we're gonna talk, the next slide is talking about the committee on special education. We're gonna talk about the composition on the next slide, but spoiler alert, parents are a part of that. And because of that, parents are entitled to timely notice of IEP meetings. They need written notice of it before the meeting. It needs to take place at a mutually agreed upon time and place because of COVID. A lot of them are virtual now. So the place shouldn't be too much of an issue. But if they get that notice and it's for an 8:00 AM in six days and they can't do that day or that time, they most certainly are able to ask for a different day or time. Parents also under the law are entitled to be meaningful participants. Case law makes clear, New York's regulations make clearer. You wanna look at your own state's regulations, which what I would imagine also made clear that parents have a right to be meaningful participants. They need to be invited to the meetings, it's critical and they need to be meaningful participants. That means that the district, the committee has to consider what the parents want. It does not mean they have to agree with it. So if you're representing families again, you need to make sure they understand that difference. However, a district cannot just tell them, this is what the program is gonna be and not listen to them or their concerns or considerations at all. They do have to listen and take into consideration what the parent wants or feels. Part of that being a meaningful participant is having an opportunity to review evaluations before meetings. That 2019 OEP letter to anonymous, I provided speaks on that. If it's a week before the IEP meeting, especially if it's a reevaluation year and the parent hasn't gotten those reevaluations, if you're the district, you might wanna try to see if you can push the meeting back. If you're representing the family, you might, at that point need to ask the meeting be pushed back. The parent needs time to review the evaluations, read them, have time to synthesize them and see if there's anything they don't agree with, anything's incorrect versus going to a meeting, having someone read about a report, they really haven't read. And then moving on. And now it's after the IEP meeting and now the parent realizes something wasn't right. They can't be a meaningful participant. They don't have the time and opportunity to review the reports documents progress reports. Evaluations that the district wants to look at the meeting. In a similar vein, if the parent has documents, they wanna provide to the district. they really need to be getting those to the district in advance of the meeting as well. Just like the parent wants time to review the evaluations and reports. If they are giving their own independent reports, letters from doctors, letters from anyone, you really wanna give the district time to read and review them, not just the morning or a day before. The next slide is the committee on special education. And this is comprised of the parents, special education teachers, general education teachers related service providers, a school psychologist, a representative of the school district, who's the CSE chair. Sometimes that is the school psychologist. They're both. And anyone the parent wants to invite or who has special knowledge or expertise, and the parent gets to choose that. So you really wanna make sure parent that if you're representing the parent, that they know they are a member of the committee, their voice matters. It sometimes it's an uneven balance, but they're there. And if you're representing the district, you also wanna make sure that even though it seems like it's a stack table, the parent is part of that committee on special education and their input matters. If they're not being heard, that's a red flag. As I mentioned in New York, there are certain protections for students who have autism, but there are also just some additional things that if there is a student with autism, whether you're representing a parent or a district, you should be aware of. In New York, if a student has autism, they need to get parent counseling and training on the IEP. So in New York, you already know is a red flag. If they have autism and the parent is not getting parent counseling and training, it's a red flag. They also need to meet the language needs of the student. This is New York's part 200.13 regulations. They used to have a minimum speech language therapy requirement, and now just says, they need to meet the student's language needs. But some considerations you wanna have of a student as autism, do they need a specific methodology such as AVA, Applied Behavior Analysis, teach, floor time. We need to consider any communication needs. Do they need assistive technology? Do they need to communication device? If they are nonverbal or they're still speaking in one to two words beyond a certain age, we wanna make sure their social skills are being assessed. They are standardized assessments to take data on their pragmatics and social skills and that there's goals and services to address it. Daily living skills like choosing weather, appropriate clothing, eating, the foods they eat, going out into the community, and any behavior and sensory issues that those are being looked at and taken into consideration, that do they need a sensory diet? Are they getting sensory input? Is it being overseen appropriately? So whether you're representing families or districts, those are considerations to really keep in mind if there's a student with autism. And so what can clients do to be prepared at meetings and after? So you always wanna let your clients know if you represent families that you want them to be involved and they can be involved, informed and effective. And so the first thing is they really should be reading documents as soon as they get them. As soon as they get that IEP evaluations, documents, read them immediately. Get them, review them and maintain them. You wanna review them immediately because if there is an issue, an error, something's not right, you want it to be addressed immediately with the district instead of four months later. If you have the IEP meeting and you think you all agree that the meeting, it would be a service four times a week and you get the IEP, but your client doesn't look at it. And now it's four months later and the service is only once bimonthly. It could have been resolved months ago. Hopefully you can speak with the district. They will confirm that it was what you all agreed to at the meeting, change it and provide makeup. But that could have been addressed months earlier. So you wanna make sure clients are looking at things immediately. Any written communications with the school, they keep those. That's probably the only upside of COVID is that in a lot more in person or face to face meetings are now written communications. So it's great when they keep those and provide them to you. You also can remind them in person or over the phone calls they have to send a follow up email confirming it. It's great speaking with you. Thanks for confirming. Speech is gonna be changed to twice a week in a group. That way, it's you have it in writing. Maintain those contacts, have them participate in meetings. One thing that's also I'm having clients do that's again been another upside of COVID and will continue is parents are seeing them a lot more doing work. And so any of those samples or homework they're seeing to show the student doesn't have, or this is the student's handwriting, or this is the student's fine motor abilities and get that to the district before a meeting. So everyone can be on the same page. And so what are the students records we're talking about? Their IEPs evaluations progress reports, discipline reports, class observations, medical records, any correspondence between home and school and parents also have a right to request their child's educational records from the district. So you can always also request that from the district or have your clients do that. And so what are some red flags or potential problems? Again, whether you represent a family or the district that might stick out to you. If a child's not attending school, they're starting to engage in school refusal. Something might be happening there, lack of evaluative information. Something's going on, but maybe they haven't been evaluated in four years or maybe their reevaluation is due in four months. Maybe we might wanna move that up here. Services aren't being provided. There's been a removal or a decrease in services without a reason, a student's regressing or not making progress. You can read sometimes in report cards, they give you those comments, or you can see even when it's numbers they're getting ones and twos and ones and twos and ones and twos, frequent suspensions, or removals, behavior issues. They're not PR being provided in methodology they need. Maybe they have a learning disability and they need a multi evidence based multi-sensory methodology. And they're not being provided that and they're not making progress. Some other ones that frequent discipline or suspension are frequent visits during a class. We certainly have had cases where checking against the cost schedule, it was during reading. It was during ELA that the student was acting out the most. If the child's not engaged, or they don't have a program, but they're clearly exhibiting some issues, whether academic, emotional, behavioral. They don't have a program, but something's going on here. And so what has COVID's impact been? So initially when COVID first happened, two and a half years ago, evaluations were a guidance came down that evaluations really were not to take place in person. They were to take place remote and be virtual. At this point in time, all evaluations really should be taking place in person, but a lot of evaluations have been standardized to take place remotely. So if that is something that needs to happen, discuss it with the district, district should discuss it with the parents. If a district wants to do a remote observation and you represent a family that agrees to it you can always speak with the district saying if we don't feel that it's fully comprehensive, we might want in person one after. IEP meetings always had to take place, so that did not stop during COVID guidance even came down saying those are not to stop. Unfortunately, there was guidance that came down that let us know instruction and service provision frequency or duration could be different due to COVID. And so what you should let families know whether you're a district or representing families, is that they should document any issues in instruction and service and let the district know about it. Because one of two things are gonna happen. Either the district is going to address that issue. They don't know about it. They might not know about it, or know it's an issue until the parent lets them know. So you wanna let the district know that issue and they can address it and remedy it, maybe provide a make service or the district is not going to do that. And that's where as a parent's representative, you might need to get involved and start speaking with the district. Part of the reason you want them to document issues is because there is compensatory education services due to failure to provide appropriate services during COVID. So if that is something you have a client who is interested in or believe they need, they certainly can speak with the district about that districts having given guidance that should be discussed during IEP meetings and districts can provide that. However, because service provision frequency and duration can be different, just not receiving what's on an IEP due to COVID is gonna be enough. You need to make sure that you are explaining to the district if you have a family, you wanna let them know this. If you're a district, you also really should be letting your families know that they need to be explaining. Has there been a lack of progress? Was there regression? Did they not meet goals? Were they not able to receive instruction, through remote learning because of the student's disability and they could not access education that way. They need to be explaining why they need the compensatory service. Simply not having a service at the rate on the IEP is sufficient for COVID compensatory service relief purposes. The next slide is what can attorneys do. And lawyers can assist with reviewing records, initiating due process hearings against school districts. If a student is not getting what they need and does not have the appropriate special education program, they can go to due process hearings, do appeals if necessary and provide advocacy at meetings to make sure everyone is on the same page and recommending an appropriate program at the outset for a student. Those cases of course can lead to due process hearings if an appropriate program is not recommended. If you are going to be representing families, either at advocacy, at meetings or due process hearings, questions you wanna answer are the cost for your services, your billing practices. Do you have any conflicts, for instance, do you or have you represented school districts or board of educations? Do you still represent them? And how many hearings have you handled? How many IEP meetings have you gone to? You wanna be able to answer those questions? The next slide talks about the type of relief that is possible in due process hearings. And which explains why might families wanna bring them? The first is a stay put provision sometimes called pendency. This is available only if a parent initiates a due process hearing. Families and parents have a right to stay put. It says everything has to stay put, everything stays put the way it is until this hearing is done. Until this hearing officer decides whether what the district has recommended is appropriate or not. So for instance, if a student has been recommended to receive home ABA services, and then for the following year, the district takes that a way, or maybe a student has been in a six-to-one-to-one or eight-to-one-to-one class and all of a sudden a district recommends general education or a larger class size parent does not agree with and does not think is appropriate, they have a right to enforce, stay put, meaning everything stays in place. It does not change to that new program. We do not agree with it stays how it was on the last agreed IEP until this hearing is done. But to get that you have to file a due process complaint. So that's really critical. You have to file it and request stay put. In addition, you can request compensatory services, compensatory tutoring. If a student, for instance, does have a learning disorder or just hasn't been given the right program and they're below grade level compensatory tutoring from a tutoring agency or a tutoring agency that uses a multisensory methodology, such as Wilson or Orton-Gillingham or Lindamood-Bell, or a compensatory ABA, Applied Behavior Analysis tutoring. Maybe that's what the student needed. They needed an ABA program, they didn't have it. Also compensatory related services. Unlike for COVID purposes, this can be for services missed in appropriate amount of services, services that were never recommended. And so now the student needs those years made up. But again, remember for that statute of limitations purposes. So you wanna make sure you're filing due process complaints as soon as possible. And also for an appropriate IEP and placement. The next slide is relief continued and that's because this is for an independent educational evaluation request. A request for an IEE at district expense. Parents have the right to disagree with district evaluations. In the second circuit, it has been made clear that those are initial evaluations and those three year reevaluations, we're not talking about any of those interim in between evaluations, a standalone evaluation. You have a right to disagree with those initial and any trinal reevaluations. This is a really complex procedural process. And so we recommend that families have attorneys. So if you are an attorney for a parent doing this that is what we recommend. The parent has the right to this, but the district must under the regulations either authorize the request for the independent evaluation or file their own due process complaint. If the district does not do that, then the parent is going to have to file a due process complaint to obtain their IEE, whether the reimbursement or if they cannot pay for it directly in order for the district to fund it. So that's something to keep in mind if you represent parents, or if you represent school districts, I provided you the DSV Trumble case. Also the May, 2019 Letter to Zaco talks about this as well as Letter to Boss and Letter to Carol, the OSAP office of special education program, guidance letters, which give some more information about IES. I also wanna talk about the fee shifting provision. This is really important. The IDEA has this fee shifting provision that states in general, if the parent of a special needs child has to sue the school district in order to enforce their special education rights and wins, they are the prevailing party. Then the school district will have to pay the reasonable attorney's fees. And so this type of due process complaint work filing due process complaints if you represent families does not need to be done pro bono for families who might not be able to afford attorneys. Legal assistance is available for anyone because there is this fee shifting provision. So if you are getting into this and you are looking to represent families we really strongly urge those who represent families to keep this in mind. Our firm uses this. We are not the only firm who does it, but we really want people to be aware of it and know that it's out there in order to provide legal assistance to those who might not normally be able to afford it, that in these types of cases, it is there for everyone. And your next slide is further regulatory language on the fee shifting provision. Thank you all so much for coming to this. I truly appreciate it. I hope that you all really got something out of this and if there are any questions, please let me know.

Presenter(s)

AM
Alison Morris
Senior Attorney
Cuddy Law Firm

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