A Survey of IDEA in Oregon

and recent federal changes to IDEA

January 2009 COSA Mini-Conference

Ty ManieriLegal SpecialistStudent Learning and PartnershipsOregon Department of Education

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Presentation Goals• to become familiar with the

general framework of IDEA as established in the Oregon Administrative Rules;

• to explore current issues facing special education through the context of ODE complaint investigations; and

• to discuss recent changes to the regulations implementing IDEA and identify their potential impact on special education

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Oregon Administrative Rules Applicable to Special Education

– General Supervision – Free Appropriate Public Education– Child Find– Evaluations and Eligibility

Determinations– Parent Participation– Individualized Educational Program

(IEP)– Placements and Least Restrictive

Environment– Procedural Safeguards– Discipline

• Chapter 581 Division 15 – Special Education

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Oregon Administrative Rules Applicable to Special Education

– Home Schooling– Educational Records

• Chapter 581 Division 21 – School Governance and Student Conduct

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2005 Issue Frequency44 complaints filed/18 dismissed/26 investigated

0

5

10

15

20

25

FAP

E

Child Find

Consent

Eval. &

Elig.

Parent P

art.

IEP

Placem

ents & LR

E

Proc. S

afeguards

Sec. 504

Discipline

Hom

e Schooling

Other

AllegedSubstantiated

6

2006 Issue Frequency53 complaints filed/24 dismissed/29 investigated

051015202530354045

FAP

E

Child Find

Consent

Eval. &

Elig.

Parent P

art.

IEP

Placem

ents & LR

E

Proc. S

afeguards

Sec. 504

Discipline

Hom

e Schooling

Other

AllegedSubstantiated

7

2007 Issue Frequency56 complaints filed/20 dismissed/36 investigated

05101520253035

FAP

E

Child Find

Consent

Eval. &

Elig.

Parent P

art.

IEP

Placem

ents & LR

E

Proc. S

afeguards

Sec. 504

Discipline

Hom

e Schooling

Other

AllegedSubstantiated

8

Three-year Issue Frequency153 complaints filed/62 dismissed/91 investigated

0102030405060708090100

FAP

E

Child Find

Consent

Eval. &

Elig.

Parent P

art.

IEP

Placem

ents & LR

E

Proc. S

afeguards

Sec. 504

Discipline

Hom

e Schooling

Other

AllegedSubstantiated

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General Supervision(OAR 581-015-2005 to -2035)

• Regulation changes– States must make annual determinations

about the performance of each LEA.– All identified non-compliance must be

corrected by no later than one year from the date of discovery.

– States must meet minimum public reporting requirements regarding:

• LEA performance on the State’s performance plan (w/in 120 days of State’s APR), and

• the initiation of federal enforcement action against the State .

– Recipients of IDEA funds must make positive efforts to employ and promote qualified individuals with disabilities

• Outlines the general supervisory responsibilities of ODE regarding implementation of IDEA

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Complaint involving General Supervision regulations

• ODE manifested bias in favor of LEAs in complaint investigations (Unsubstantiated)

– Corrective measures• Clarification of ODE policy and procedures

regarding timelines for investigations and CA• Elimination of language in Final Orders that

may mislead the reader regarding the level of agreement reached at IEP team meetings

• Compliance Monitoring– Parents allege

• ODE failed to adequately ensure District compliance with a prior Final Order

– Unsubstantiated – timeline extended for exceptional circumstances and CA completed within 1 yr.

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Free Appropriate Public Education

(OAR 581-015-2040 to -2075)• Provides a general definition of FAPE and some specific components such as graduation, assistive technology, Extended School Year Services, and in-district charter schools

• General inquiry – Is the service in question necessary for the student to access their education?

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Complaints involving FAPE regulations

• Relevant Facts– Student was placed in a self-contained

classroom outside of his neighborhood school• District provided door-to-door bus transportation• Shorter hours and school week than the

neighborhood school– Parents requested that student still be picked

up at same time as neighborhood school students

– District denied the request• Outcome – unsubstantiated

– District is only required to provided transportation services as necessary for the student to access educational opportunities – not to accommodate parental preferences

• Parents allege– District violated IDEA by failing to provide adequate

transportation services

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Child Find(OAR 581-015-2080 and -2085)

• General concept– Creates an affirmative obligation

for school districts to identify children in need of special education services, not an individual right for every student to be “found”

• Creates an affirmative obligation for school districts to “identify, locate, and evaluate all resident children with disabilities,” including children attending private schools within the district, in need of special education services

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Consent(OAR 581-015-2090 and -2095)

• As of December 31, 2008, the federal regulations pertaining to parental consent have changed.

• The consent regulations, along with the impact of the recent changes, will be addressed later in this presentation.

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Evaluations and Eligibility Determinations

(OAR 581-015-2100 to -2180)

• Establishes procedures and timelines for evaluating and re-evaluating students for disabilities and determining student eligibility for special education and related services under IDEA

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Complaints involving Evaluations and Eligibility Determinations regulations

• Parents allege– District violated IDEA in finding

student ineligible for special education

• Outcome – unsubstantiated– Student was determined to not be in

need of special education services– District was able to serve the student

in the general education program with accommodations

• Change to lower-level math course• Shortened assignments• Individualized instruction for concept

review in math• Extra test time• Oral tests

– Student performed on par with other students in the general education program

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Parent Participation(OAR 581-015-2090 and -2095)

• Establishes the role of parents with respect to identification, evaluation, IEPs, and placement

• Outlines the extent to which school districts must promote parental participation including providing meeting notice, copies of the IEP, and interpreter services

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Complaints involving Parent Participation regulations

• Communication protocols– Parents allege - retaliation

• Unduly restricted the parents’ school visits and communication with District staff

– Outcome – unsubstantiated• No IDEA provision regarding time, place,

and manner restrictions on parent speech• Analyzed as a retaliation case

– 1) protected activity – 2) District awareness– 3) adverse action– 4) casual connection

• ODE concluded that the circumstances (although satisfying 1-3) were the result of on-going tense and distrustful communications between the parties

– Not the prior complaint request

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Individualized Educational Program(OAR 581-015-2200 to -2235)

• Establishes guidelines for the content of IEPs, the make-up of IEP teams, when IEPs must be in effect, and when IEPs must be reviewed and revised

• Establishes procedures for conducting IEP meetings, creating IEPs for transfer students, and including transition services on IEPs

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Complaints involving IEP regulations• IEP team participation

– Parent alleges• District violated IDEA by allowing the

District’s attorney to attend IEP meetings

• District violated IDEA by disclosing confidential information to the District’s attorney and a meeting facilitator in the context of an IEP meeting

– Outcome• District did not violate IDEA by allowing

attorney to attend meeting• District did violate IDEA by disclosing

confidential information to the attorney and meeting facilitator

– Neither listed as educational officials with a legitimate educational interest

• District also failed to give notice of the facilitator’s attendance at the meeting

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Placements and Least Restrictive Environment(OAR 581-015-2240 to -2255)

• Requires districts to educate students, to the maximum extent possible, with children who do not have disabilities and only when the nature or severity of the disability requires removal

• School districts must establish a continuum of alternative placements to meet the needs of children with disabilities

• Includes procedures for determining placement and the district’s obligation for providing access to nonacademic and extracurricular activities

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Procedural Safeguards(OAR 581-015-2300 to -2385)

• Includes provisions concerning student records, independent educational evaluations, prior written notice, transfer of rights at majority, mediation, and due process hearings

• Combines a number of procedural rights afforded to parents of special education students and “adult students”

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Complaints involving Procedural Safeguards regulations

• Parent communications and prior written notice– Operative terms

• written notice; reasonable period of time before; district proposes to initiate or change; refuses to initiate or change; identification, evaluation, or educational placement…or the provision of a FAPE

– Finding of noncompliance with the PWN requirement often result from miscommunications with parents

• Clearly summarize meeting decisions so that parents are aware of “next steps”

• When in doubt, send a PWN– Beware of forms – one size doesn’t fit all

• Limit parent requests when appropriate with a communication protocol

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Discipline(OAR 581-015-2400 to -2445)

• Outlines the disciplinary procedures that must be followed with regard to students with a disability or suspected of having a disability – Includes the use of

manifestation determinations and placements in an interim alternative educational settings

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Homeschooling(OAR 581-021-0026 and -0029)

• Includes provisions concerning school districts responsibilities to students with disabilities who reside in their district and are eligible for special education services

• Addresses topics such as child find, partial enrollment, the applicability of the procedural safeguards in the context of home schooling

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Educational Records(OAR 581-021-0220 to -0430)

• Rights of parents and eligible students– Inspect and

review– Request an

amendment– Annual

notification• Establishing local

policy• Transfer of

records

• Covers a large number of topics concerning student educational records

• Confidentiality • Prior consent to

disclose personally identifiable information

• Exceptions to prior consent

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Consent34 CFR § 300.300(b)

• (3) If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services, the public agency—

– (i) May not use mediation or due process procedures in order to obtain agreement or a ruling that the services may be provided to the child;

– (ii) Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with the special education and related services for which the parent refuses to or fails to provide consent; and

– (iii) Is not required to convene an IEP Team meeting or develop an IEP for the child.

• (4) If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency—

– (i) May not continue to provide special education and related services to the child, but must provide prior written notice before ceasing the provision of services;

– (ii) May not use mediation or due process procedures to obtain agreement or a ruling that the services may be provided to the child;

– (iii) Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with further special education and related services; and

– (iv) Is not required to convene an IEP Team meeting or develop an IEP for the child for further provision of special education and related services.

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ConsentHow will the change affect other IDEA compliance requirements?• Child Find

– obligation is the same as to other children in the district

• Evaluations and Eligibility Determinations– In order to regain IDEA eligibility,

the student must undergo another initial evaluation.

– The evaluation may be completed without any new assessments being administered if the data is up-to-date.

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ConsentHow will the change affect other IDEA compliance

requirements?• IEP

– The district has no obligation to create or implement an IEP, call an IEP team meeting, or offer to develop an IEP.

• Placements and LRE– Placements can be in any

appropriate setting where general education students are educated.

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ConsentHow will the change affect other IDEA compliance requirements?• Procedural Safeguards

– Transfer of Procedural Rights at Age of Majority

• District must also send a PWN to parents of “adult students.”

– Access to Student Education Records

• Districts are not required to purge special education records from the student’s file.

• Amendment may be made following established IDEA procedures.

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ConsentHow will the change affect other IDEA compliance requirements?• §504 of the Rehabilitation Act

– OSEP’s § 504 guidance• “These final regulations implement

provisions of the IDEA only. They do not attempt to address any overlap between the protections and requirements of the IDEA, and those of Section 504 and the ADA.”

• OCR has not provided guidance.• Discipline

– Districts can follow the same disciplinary procedures used for general education students.

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ConsentHow will the change affect other IDEA compliance requirements?• Procedural Safeguards

– Prior Written Notice• Effective date• Services to be discontinued• Student’s new placement• Re-eligibility process• Disciplinary procedure changes• Services provided through the

general education program• State-wide testing and/or

graduation implications

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ConsentHow will the change affect other IDEA compliance requirements?

• Non-district attendees– Students attending schools or

educational programs run by an organization other than the student’s school district

• charter schools– in-district and out-of-district

• homeschooling• private schools/programs

– IEP team and parentally placed• residential facilities

– IEP team and parentally placed

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ConsentHow will the change affect other IDEA compliance requirements?

• Discussion items:– athletic eligibility– graduation– EI/ECSE regulations– partial enrollment– the unknown?

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ConsentHow will Oregon Department of Education respond to the

change?• Next steps

– Changes and additions to Oregon statutes and regulations to reflect recent changes

– ODE issues guidance regarding the administration of the new consent revocation provisions

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Presenter InformationTy ManieriLegal SpecialistOffice of Student Learning and PartnershipsOregon Department of Educationtmanieri@state.or.us(503)947-5689