TH THE 15 ANNUAL ALLERTON RETREAT FOR EDUCATORS OF

STUDENTS WITH BEHAVIORAL DISORDERS

HIGHLY QUALIFIED AND

MORE: WHAT IS NEW FROM WASHINGTON AND

SPRINGFIELD

SEPTEMBER 24, 2005 1:15-2:30 P.M.

AGENDA

I. Introduction and Overview A. What I Will Cover

B. Explanation of Materials II. Major Changes Resulting From New IDEIA

A. Introductory Items a. Paperwork Reduction?

i. Pilot Paperwork Reduction Act ii. Provision of Procedural Safeguards Notice

b. Child Find Requirements/ Private Schools c. Integration of NCLB “Highly Qualified Teacher” Requirements

B. Evaluations/Reevaluations a. Timelines for Evaluations/Reevaluations b. Overriding Lack of Consent for Initial Evaluations/ Initial Placements c. Eligibility Termination/Children Graduating/Aging Out of System – New

Requirements d. LD Eligibility

C. IEPs a. Multi-Year IEPs b. Reporting Progress

i. Present Levels of Performance ii. Writing Goals and (maybe) Objectives

iii. Reporting Progress on Goals For Parents c. Transition Services d. Alternative Methods For IEP Meetings

i. Meetings Without Required Members ii. Video Conference/Teleconference

iii. Making Changes Outside of an IEP Meeting

D. Changes in Due Process Procedures a. Statute of Limitations b. Due Process Complaint Notice c. Response to Due Process Complaint d. Convening Resolution Sessions e. Attorneys Fees

E. Discipline a. Manifestation Determinations b. Automatic 45-Day Removals c. Protections For Children Not Yet Eligible

III. Update on New Special Education Case Law

TABLE OF CONTENTS Name of Handout Page # 1. NEW IDEIA …………………………………………….. 1 - 18 2. RECENT SPED DECISIONS ..........................................19 - 24

1

The new Individuals with Disabilities Education Improvement

Act of 2004 (“IDEIA 2004”) was signed into law by the President on December 3, 2004. The Act went into effect on July 1, 2005, with the exception of a few sections, which went into effect immediately. A full version of the IDEA, with changes highlighted, can be found at

http://www.copaa.net/IDEA/IDEA97-04COMP.pdf.

To date, no action has been taken by the Illinois State Board of Education in response to the reauthorization. A draft version of the Federal regulations has been issued and is currently in its comment session. Final regulations are expected no earlier than December, 2005.

A summary of the most significant changes in the IDEIA is contained in this handout.

Lara A. Cleary

WHITTED & CLEARY LLC 3000 Dundee Road

Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8661

www.whittedclearylaw.com Lcleary@Whittedclearylaw.com

THE 2004 IDEIA

SUMMARY OF IDEIA 2004 CHANGES

Section Change Impact Purpose: (20 U.S.C. 1400 § 601) Adds language “to the maximum extent

possible” in several sections of the purpose of IDEIA.

Congress has changed the standard for special education students from merely providing “appropriate” services to providing “maximum” services. However, it should be noted that states are still only mandated to provide the current standard of “Free and Appropriate Public Education” (“FAPE”)

Definitions: (20 U.SC. 1400 § 602) Adds language to include foster parents

and “Releasing information to “other relatives” of a child could be a disaster under current state confidentiality laws. Districts will have to be diligent to ensure the information they are releasing to “other family members” who

“Parent” or other relative with whom the child lives or who is legally responsible for the child’s welfare…”

claim to be responsible for the child are in fact within all federal and state exceptions.

Pilot Paperwork Reduction Project: Adds text to allow the U.S. Department of Education to “grant waivers of statutory requirements of, or regulatory requirements relating to, Part B for a period of time not to exceed 4 years with respect to not more than 15 states based on proposal submitted by State to reduce excessive paperwork and non-instructional time burdens that do not assist in improving educational and functional results for children with disabilities.”

Should Illinois be one of the 15 states involved in this pilot program, it is difficult to imagine how it will be possible to decrease the amount of paperwork related to special education while still preserving procedural safeguards.

(20 U.SC. 1400 § 609)

Likely, the only true “paperwork reduction” is the change in when a district must provide the written notification of procedural safeguards to parents - which is upon the initial referral for sped., one time per year, upon the first occurrence of a due process request filing, and upon the request of the parent.

2

Section Change Impact Related Services: Changed previous text of “school health

services” to “school nurse services.” Also added “interpreting services,” and specifically excluded “a medical device that is surgically implanted, or the replacement of such a device.”

The exclusion of “a medical device that is surgically implanted” is thought to relate to Cochlear implants, which is a field of special education litigation that has increased significantly in the last few years. Much of the current case law requires school districts to pay for the

(20 U.SC. 1400 § 602(26))

1mapping of a child’s Cochlear implant, not the implantation itself.

Child Find Requirements: Adds new language stating that districts are now required to provide child find servcies for homeless children and children who are wards of the state.

This new language regarding child find requirements suggests that local school districts have to pay for some services for private school children in their area,

20 U.SC. 1400 § 612(a)(1)(C)

despite the fact that the child’s parents are not Also provides that districts are now responsible for “child find” requirements for

residents of that school district. Current law in Illinois states that the local school district of a child in a private placement does have to serve these children, however the school district in which their parents reside has to pay for those servcies. It will be interesting to see how this affects current residency law.

all private schools in their geographic area, and that they must meet with private school employees “throughout the year” to discuss with these representatives “types of services” “how such services will be appropriated if funds are insufficient to serve all children,” and “how and when these decisions will be made.” (continued on next page)

1 The “mapping” of a cochlear implant is a procedure often conducted by a child’s audiologist which sets the sound parameters on each electrode at the

appropriate, comfortable levels as indicated by the recipient. This procedure is required to be performed for children with Cochlear implants at least annually, with more visits needed immediately after implantation.

3

Section Change Impact Child Find Requirements: Districts also are required to submit a form

to ISBE See previous page

220 U.SC. 1400 § 612(a)(1)(C) that the private school administrator has signed indicating their child find requirements have been satisfied.

(cont’d)

If a private school is not satisfied with the services the local school district is offering, they are allowed to file a complaint to the State educational agency.

Early Intervening Services: States that school districts can take up to 20 U.SC. 1400 § 613(a)(9) 15% (as opposed to the 5% allowed

previously) of Part B special education funds “to develop and implement coordinated, early intervening services” for children K-12 who have not been identified for services but who need additional academic and behavioral support to succeed in a general education environment. Also states these funds can be used for professional development, educational and behavioral evaluations, services and supports.

2 Despite Congress’ statement that one of the goals for the 2004 reauthorization was to decrease paperwork requirements for districts, this is the first of several

new paperwork provisions for districts. A list of a few of these new paperwork provisions is attached.

4

Section Change Impact Teacher Certification: States that all teachers must meet the

“highly qualified” requirements of the No Child Left Behind Act (“NCLB”)

While most school districts are already in the process of changing their teacher requirements due to NCLB, this most significantly impacts school districts who have

20 U.S.C. 1400 § 612(a)(14)(C) 3 and

must hold at least a bachelor’s degree. opted out of NCLB. This now means

that even those districts must comply with NCLB requirements for special education teachers.

Mandatory Medication: New language has been added which specifically prohibits school districts from refusing educational services to parents who choose not to medicate their children.

Parents of children with ADHD who choose not to medicate cannot be treated differently. 20 U.SC. 1400 § 612(a)(25)

Timeline for Initial Case Study Evaluation: (“CSE”)

The new section states that school districts must complete CSE’s within 60

Illinois rules state that school districts have 60 school days to complete CSEs. This should apply, however many school districts are taking a conservative approach and doing CSEs in 60 calendar days.

calendar days, however this section does provide that states may utilize their own timelines if they have a timeline.

20 U.SC. 1400 § 614(a)(1)(C)(i)(I)

3 The requirements in Illinois to be considered “highly qualified” include for teachers to have a valid Illinois teaching certificate in the area of specialty (elementary,

secondary or special education) and meet one of the following options: 1) pass the elementary/middle grades test or the content-area test for the area of teaching responsibility, 2) have a major or coursework “equivalent to a major,” 3) have a master’s degree or other advanced degree/credential, 4) be certified by the National Bard of for Professional Teaching Standards, and 5) Have an endorsement or its coursework equivalent that is sufficient to meet the Illinios maximum requirements for the area of teaching responsibility, have teaching experience in the area and have engaged in relevant continuing professional education.

5

Section Change Impact Reevaluations: New language has been added to the effect

that reevaulations cannot be performed more than once a year unless the school and parent agree otherwise.

20 U.SC. 1400 § 614(a)(2)(B)

Eligibility Determination: Language added states that children are not

to be found eligible for special education services if the determinate factor is a lack of appropriate instruction in the essential components of reading instruction (as defined in the NCLB

This additional language suggests children can no longer be found eligible for a Learning Disability if they have not previously

20 U.SC. 1400 § 614(a)(5) specifically

received

4).

reading instruction based on phonics. This is the first time that the IDEA has ever identified (and required school districts to use) specific teaching methodologies

Eligibility Termination: New language includes a provision that school districts have to provide “a summary of the child’s academic achievement and functional performance, including recommendations on how to assist the child in meeting… postsecondary goals,” upon discontinuing special education services for a child. (including graduation and aging out of the sped system).

Many comments have expressed that this requirement may be troublesome. The proposed federal regulations so far provide no guidance as to the form or content of this summary and many school districts are struggling over what information should be contained.

20 U.SC. 1400 § 614(c)(5)(B)(ii)

4 The “essential components of reading instruction” as defined in NCLB include: a) phonemic awareness, b) phonics; c) vocabulary developments, d) reading

fluency, including oral reading skills, and e) reading comprehension strategies.

6

Section Change Impact Specific Learning Disabilities Eligibility: A school district is not required20 U.SC. 1400 § 614(b)(6)(A)

to take into consideration whether the child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation or mathematical reasoning. Instead, a school district “may” use a process that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures.

This language dispels the belief that just because a child has a “severe discrepancy” between IQ scores in certain areas they are automatically found eligible for special education services under the LD category. The proposed Federal regulations appear to establish more specific criteria for LD eligibility, which may be helpful if these criteria remain in the final regulations.

IEPs: Adds text to allow 15 states (which have

yet to be identified) to develop “multi-year” IEPs (every three years) for certain students as opposed to the current annual reviews required by law. States must submit a proposal to the federal government in order to be considered part of this program.

While this initially was shocking to parent attorneys and advocates, the language included in this section still requires parental consent before implementing a “multi-year” IEP. In addition, annual goals are still required for the IEP and “an annual review must be conducted to determine the child’s progress toward the annual goals.” If the child is not progressing toward the goals, then the IEP must be redrafted.

Multi-Year IEP Determination Pilot Program: (20 U.S.C. 1400 614(d)(5)(A)

The IEP must also be reviewed at the request of a parent. As such, it

appears that this provision will have little to no impact on the current standards for IEPs, in districts where parents are adequately informed.

7

Section Change Impact IEPs: This section omits the requirements for

short-term goals, and instead states that IEPs must contain “a statement of measurable annual goals, including academic and functional goals…”

It will be more difficult for parents and districts to prove definitively whether the child is meeting annual goals, as “measurable objectives” are no longer required. Measurable yearly goals are now required.

Short term objectives: 20 U.SC. 1400 § 614(d)(1)(A)(i)(I)(cc)

Districts may use benchmarks or objectives however, objectives are still necessary for those students who are receiving alternative assessments.

Also note that the present levels of performance statement is now called the present levels of “academic achievement and functional performance.” Note that neither the new statute nor the proposed regulations provide a definition of “functional performance.”

IEPs: New language discontinues the need for quarterly progress reports, and instead only issues a

While most Illinois elementary and high schools do issue progress reports and report cards more than once a year, a district could potentially only have an obligation to track a special education child’s progress toward goals annually. If more frequency is desired, it appears it will be the responsibility of the parents to request that it be written into the IEP that the district provide more frequent reports.

Student progress: 20 U.SC. 1400 § 614(d)(1)(A)(i)(III) suggestion for the progress reports

to be issued “concurrent with the issuance of report cards.”

8

Section Change Impact IEPs: The new language pushes the requirement

for transition services planning from 14 to “beginning not later than the first IEP to be in effect when the child is 16…” It also requires the team to draft “appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate independent livings skills.” It also must list “the transition services (including courses of study) needed to assist the child in reaching those goals.”

This new language significantly increases the requirements for transition planning, but raises the age when the District has to begin the process. The current rules in Illinois still require the process to begin at age 14. Many school districts are continuing to use age 14 as a conservative approach.

Transition Services: 20 U.SC. 1400 § 614(d)(1)(A)(i)(VIII)

IEPs New language states that if a required IEP

team member’s “area of curriculum or related services is not being modified or discussed in the meeting” and if the parent and district agree the attendance of a mandatory IEP participant is not necessary, then that member does not have to participate.

This might potentially mean that districts could have only one representative (the LEA representative) present at an IEP meeting as long as summary reports are provided by all other participants. Remember,

IEP Attendance and Excusal: 20 U.SC. 1400 § 614(d)(1)(C)(i), (ii) and (iii) an advance report by the

absent participant will be required if the persons’s area of curriculum or related services is at issue, and written parent agreement must always be obtained prior to that an individual’s excusal. Districts must be careful about excusing a regular education teacher’s participation, as the new IDEIA has strengthened the role of the regular education teacher at IEP meetings – requiring that teacher to help “determine the appropriate behavior interventions and strategies, and supplemental aids and services that are necessary for their classrooms.” (1414)(d)(3)(C).

Requires written agreement by the parent. In addition, even if the required team member’s “area of curriculum or related services” is being modified or discussed, that person may be excused “in whole or in part” from attending an IEP meeting if: 1) a parent agrees in writing, and 2) “the member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to that meeting.”

9

Section Change Impact Procedural Safeguards: This new language now assigns a uniform

statute of limitations (two years before the date the parents or public agency “knew or should have known”) regarding IDEA cases.

Although it was never specifically included within Illinois’ rules and regulations, case law has affirmed that the statute of limitations is generally a two-year period, so not a real change for Illinois.

Statute of Limitations: 20 U.SC. 1400 § 615(f)(3)(D) Due Process Complaint Notice and New language indicates that after a party

files for due process, the party receiving the request has

When IDEA was originally created, the due process provision was created in order for parents to be able to represent their own children at hearing, so they did not have to pay for lawyers. With the addition of this language, it could be argued that a hearing officer could dismiss a due process complaint on its face without an opportunity for the parent to correct the complaint. While parents are allowed to file a separate complaint with new issues listed, they might not be savvy enough to properly word their complaint and could be left with no remedy. One impression of this provision is that it could lead to “full employment for lawyers.”

Amended Complaint Notice: 20 U.SC. 1400 § 615(f)(3)(B), (D) and (E) 15 days to object to the

sufficiency of the request. If the receiving party does not object to the request, then it is “shall be deemed sufficient.” If the receiving party does object to the request, then the hearing officer assigned to the case will determine if the request meets legal requirements.

and 20 U.SC. 1400 § 615(o)

This provision also states that the party filing the due process request may not raise additional issues other than those listed in the request, at hearing, unless the other party agrees.

The complaint notice (due process request) must contain the child’s name and address, the school the child attends, a description of the problem alleged, including the facts of the situation, and a proposed resolution. A parent filing the request must send it to the school district superintendent and it is then the district’s responsibility to forward the request to the ISBE within 5 days for the appointment of a hearing officer.

A parent may file an amended due process complaint only in two circumstances: 1) if the other party consents in writing, or 2) if the hearing officer grants permission. However, another new provision indicates that nothing precludes parents from filing a separate due process complaint for issues not listed on previous complaints.

10

Section Change Impact Response to Due Process Complaint: Another provision has been added that

once a party has received a due process request, they are

Important new ten-day timeline! It is unclear whether an IEP which addresses the issues in the complaint may suffice as a “response.”

20 U.SC. 1400 § 615(c)(2)(B)(ii) required to answer or

respond to the specific issues listed in that request within 10 days. ISBE has issued a guidance memo, which contains some information regarding the content of this notice. This memo is available on the ISBE website. If a hearing officer has been assigned, he or she must also receive a copy of the response. If a hearing officer has yet to be assigned, then it must also be sent to ISBE.

Resolution Session: After a district receives a request for due process, it is

It is believed that this provision was added to encourage resolution without the need for involvement of attorneys or hearing officers.

20 U.SC. 1400 § 615(f)(1)(B)(ii) mandated to convene a meeting, called a “resolution session”, to try to resolve the complaint within 15 days of receiving the parent’s complaint, unless

This provision also brings into question whether parents will be able to bring nonlegal “advocates” with them (as opposed to attorneys) without the district being able to also be represented.

both parties agree to waive this meeting. The section further states that if a parent does not attend the meeting with an attorney, then the district’s attorney cannot be present at the meeting. This is not intended to be an IEP meeting (although it arguably may) but must include the parents, a district representative, and members of the IEP team that have “knowledge of the request.”

The parties may agree to use the state mediation procedures in the place of a resolution session.

(continued on next page)

11

Section Change Impact Resolution Session: (cont’d) If both parties agree to hold the meeting

and resolve the situation amicably, then the agreement generated at this meeting will be considered a

Currently, ISBE has taken the position that the 45 day due process timeline does not start until the 30 day “resolution session” timeline is exhausted, but a few Illinois hearing officers are already disagreeing. Thus, different hearings may utilize different timelines unless a court provides precedent.

20 U.SC. 1400 § 615(f)(1)(B)(ii)

legally binding agreement between both parties. However, the agreement can be voided by either party within three days of execution.

If both parties have not reached a settlement within 30 days after the due process request was filed, then the parties may move forward with the hearing.

Attorneys Fees: 20 U.SC. 1400 § 615(i)(3)(D)(ii)

A new provision has been added stating that a court may award attorney’s fees to a district “against the

While this section first appeared shocking to most parents, it is believed that to prove a case is “frivolous, unreasonable or without foundation” will (as is now the case in all litigation) be extremely difficult. However, if a school district pursues a parent under this section, even if the parent wins, the resources utilized to defend the claim are unduly burdensome to most families.

attorney of a parent” who: 1) files a complaint that is frivolous, unreasonable or without foundation and 2) who continues to litigate after the litigation clearly became frivolous, unreasonable, or without foundation. (continued on next page)

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Section Change Impact Attorneys Fees: (cont’d) 20 U.SC. 1400 § 615(i)(3)(D)(ii)

A district can also be awarded attorney’s fees from a parent or a parent’s attorney if the complaint was brought for “any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.”

The provision also states that “at the discretion of the state” attorney’s fees can be awarded for mediation, however they cannot be awarded for a lawyer’s attendance at a resolution session.

Discipline: This provision states that a special education child who is removed from his or her educational placement for more than 10 school days must be provided FAPE and must also receive a functional behavioral assessment and behavior intervention services and modifications.

20 U.SC. 1400 § 615(k)(1)(D)

13

Section Change Impact Manifestation Determination: This provision poses new questions the IEP

team must consider when determining whether a child’s behavior was or was not a manifestation of their disability: 1)

It is believed the amended language makes it easier for a school district to determine that a child’s behavior was

20 U.SC. 1400 § 615(k)(1)(E) not a manifestation of

his/her disability. If the conduct in question was caused by or had a direct and substantial relationship, to the child’s disability, or 2) if the conduct in question was the direct result of the school district’s failure to implement the IEP. (The previous questions were: 1) If a child’s disability impaired the ability of the child to understand the impact and the consequences of the behavior, and 2) if the child’s disability impaired the ability of the child to control the behavior)

Determination that Behavior was a This is a new section and states that if a district does find a child’s behavior to be related to his or her disability, then it is required to: 1) create and FBA and BIP for the child (if one was not already completed), 2) revise a child’s FBA and BIP if one was already completed and 3) return the child to his or her previous educational placement.

This new section offers parents the guarantee that if their child is suspended for more than 10 days in a year, that a FBA and BIP will be drafted.

Manifestation: 20 U.SC. 1400 § 615(k)(1)(F)

14

Section Change Impact 45-Day Removal: New language specifies that a child’s

removal may now be implemented for 45 Taking into consideration that a typical school year is approximately 180 school days, removal for 45 days constitutes about 25 percent of the school year.

20 U.SC. 1400 § 615(k)(1)(G) and (k)(1)(H)(2) school days, as opposed to 45 calendar

days. A third reason for removal of a child has also been added, which is for “inflict[ing] serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the school district.”

There will also be considerable debate regarding the language “serious bodily injury.” The section states that the definition is defined as it is in the U.S. criminal code (18 USC §1365(3)(h), which defines it as: “(A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or The new code has also changed the

parental appeals process for these 45-day removals. The new language now states the child’s placement will remain at the alternative placement during the pendency of the dispute. In addition, the timeline for completion of an expedited due process hearing to overturn the decision to remove the child has been extended. Formerly, the requirement was for the hearing and opinion to be completed within 15 calendar days of a hearing being requested by the parents. The new language changes this from 15 calendar to 30 school days.

(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.” From this definition, it appears that it will be difficult for school districts to define a child’s actions as “serious bodily injury,” however case law will have to determine what is considered “serious.” The new timeline set for “expedited” due process hearings is now more in favor of districts, since 30 school days translates to about 45 calendar days.

15

Section Change Impact Protections for Children Not Yet Eligible New language states that a school district is

deemed to have “knowledge” that a child has a disability if,

New language has significantly restricted what is considered “reasonable notice” to the school district that a child may have had a disability. Former language would allow for a child’s “behavior or performance” to be sufficient notice, however the new language places added burden on the parents of a child who may have a disability to

for Special Education and Related Services: before the behavior

occurred: 1) the parent of a child expressed concern, in writing, to the district, 2) the parent requested a CSE, or 3) a teacher of the child or other school district personnel expressed specific concerns about a pattern of behavior to the director of special education or “other supervisory personnel.”

20 U.SC. 1400 § 615(k)(5)(C)

be well informed of their rights and assertively insure that concerns are brought to the school district

prior to the child displaying behavior. Training is needed in this area. Also, a child may not be considered to be a “not yet eligible child” if the District had performed a CSE and an IEP and the parent refused consent for the initial placement.

Preschool Grants: The new language now allows for states to have the option of creating a policy which would allow parents to choose to continue early intervention services “until such children… enter kindergarten,” as opposed to having the responsibility rest solely on the school district upon age three.

If Illinois chooses to create such a policy, then parents who choose these services will not be afforded the protections offered under IDEA for special education students until they are placed into kindergarten.

20 U.SC. 1400 § 635(c)

16

NEW PAPERWORK REQUIREMENTS FOR SCHOOL DISTRICTS, PARENTS

(as required by IDEIA 2004) 1. Letter and/or form indicating that the district’s Child Find requirements

have been met satisfactorily in relation to local private schools. 2. Annual report re: early intervening services, including the number of children served

and the number of students who subsequently receive special education and related services during the preceding 2-year period.

3. Summary of child’s academic achievement and functional performance,

including recommendations on how to assist child in meeting postsecondary goals, upon discontinuing special education services for a child.

4. Parent signature required if both the district and the parent agree that a

mandatory IEP attendee does not have to attend a meeting. (Waiver form – attached) 5. Parent signature required if both parties decide that a re-evaluation is not

necessary. (Waiver form – attached) 6. Parent signature required if both parties agree that an annual review is

not required. (Waiver form – attached) 7. Notice to a hearing officer that a due process complaint did not meet the

legal requirements. 8. Response to due process complaint. (Cannot be form letter – must

submit in 10 days) 9. Paperwork pursuant to the convening of resolution sessions – sign-in sheet,

documentation of issues and responses and written agreement (if reached).

17

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PARENTAL WAIVER (IDEIA 2004)

The undersigned, parents of _______________________________________, Age

_________, by signing this form acknowledge they waive the following in the conduct of

today’s IEP meeting:

(title)______________________, required IEP attendee, is a ___________________

and it is agreed that he/she does not need to attend today’s IEP meeting;

A re-evaluation in the domain(s) of ___________________________________

_____________________________________________________________________

is not required at this time;

An annual review meeting is not required at this time, and it is agreed that current

IEP services will continue into the next academic year.

The undersigned recognizes and agrees that he/she has the right to the item waived and, knowing this, chooses to waive the item at this time.

X: _________________________________ Parent/Guardian/Surrogate Witness:_________________________ Date: ________________________ Title: _________________________

Prepared by Whitted & Cleary LLC, 3000 Dundee Road, Suite 303, Northbrook, IL 60062 (847) 564-8662 Fax: (847) 564-8419

www.whittedcleary.com

19

Lara A. Cleary WHITTED & CLEARY LLC

3000 Dundee Road Northbrook, Illinois 60062

(847) 564-8662; Facsimile (847) 564-8661 www.whittedclearylaw.com

Lcleary@Whittedclearylaw.com

RECENT SPECIAL EDUCATION DECISIONS

20

I. PROCEDURAL ISSUES

A. Burden of Proof JH v. Henrico County Sch. Bd, 42 IDELR 199, 105 LRP 2852 (4th Cir. January 20, 2005 ).

In this case the 4th Circuit Court of Appeals relied on a ruling it had made only months below in a similar case, Weast v. Shaffer (see below), and remanded to a hearing officer for the third time stating that the hearing officer should have placed the burden of proof on the parents, not on the school district. The student, who has high-functioning autism, was in a public school’s general education program with special education and related service for the regular school year. The public school district offered an extended school year program to the student with similar services as offered during the regular school year, but at reduced levels. The student’s parents disagreed, arguing that the student should have a high level of services during the summer program in a smaller setting in order to avoid regression, and they took the case to a due process hearing. The hearing officer found in favor of the parents, concluding that the district had failed to prove that its extended school year IEP was appropriate to prevent the student from regressing during the summer and to prevent the gains he made from being significantly jeopardized. On appeal, the 4th Circuit reversed the hearing officer’s decision, but refused to render a decision on the merits of the case, stating “Unbeknownst to the Hearing Officer and the parties at the time of the administrative hearing on [the first] remand, the hearing officer erroneously placed the burden of proof on the [school]. Under our recent decision in Weast, issued long after the conclusion of the proceedings in this case below, the Hearing Officer should have placed the burden of proof on the Plaintiffs.” Therefore, the Court remanded the case back to the hearing officer with specific instructions to reweigh the conflicting evidence with the burden of proof “properly” allocated on the parents to answer the question of whether the IEP was appropriate. Weast v. Schaffer, 41 IDELR 176, 104 LRP 35502 (4th Cir. July 29, 2004). The parents of a student with ADHD and learning disabilities challenged their public school district’s decision to educate their son at his home school. The parents believed that this child required a smaller class size, placed him in a private school and then requested reimbursement of the tuition and other expenses for the student’s private school education. At the original due process hearing, the hearing officer assigned the burden of proof to the parents. Both sides submitted extensive expert testimony, and the hearing officer considered the case to be “close” but ultimately found that the parents had not met their burden and upheld the IEP offered by the school district. On appeal, the district court reversed, finding that the hearing officer had erred in assigning the burden of proof to the parents, and remanded back to the hearing officer for further proceedings. Following the remand, where the hearing officer held in favor of the parents with the reallocated burden of proof, the case was again appealed. Ultimately the 4th Circuit, after reviewing how many of the other circuit courts allocated the burden of proof, decided that there was “no reason to depart” from the generally held rule in law that the party seeking relief, here the parents, had the burden of proof. The court reasoned in part that Congress specifically took care to provide comprehensive procedural protections to parents in order to level the playing field. Although the Seventh Circuit has not specifically ruled on this issue, the majority of Illinois State hearing officers assign the burden of proof to the school district. This is the majority view, in line with the Second, Third, Eighth, Ninth and D.C. Circuits. See, Walczak v. Fla. Union Free Sch. Dist. 142 F.3d 119 (2nd Cir. 1998), Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520 (3rd Cir. 1995), E.S. v. Independent Sch. Dist. No. 196, 135 F.3d 566 (8th Cir. 1998), Clyde v. Puyallup Sch. Dist. No. 3, 35 F.3d 1396 (9th Cir. 1994), and McKenzie v. Smith, 771 F.2d 1527 (D.C. Cir. 1985), respectively. In ruling that the parents have the burden of proof in a due process hearing, the Fourth Circuit adopted the minority view also held by the Fifth, Sixth, and Tenth Circuits. See Alamo Heights Indep. Sch. Dist. v. State Bd. Of Educ., 790 F.2d 1153 (5th Cir. 1986), Cordrey v. Eukert, 917 F.2d 1460 (6th Cir. 1990), and Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022 (10th Cir. 1990) respectively.

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On Tuesday, February 22, 2005 the Supreme Court agreed to hear the Weast appeal. In its 2-1 decision in Weast , the 4th Circuit acknowledged that the Circuits were split on the issue, and of course, with the Weast decision as it currently stands, they are now almost evenly split on this issue. No timetable for the High Court’s decision is available, but a ruling is expected by June, 2005.

B. Other Procedural Issues

Veazey v. Ascension Parish Sch.Bd. 42 IDELR 140, 105 LRP 819 (5th Cir. January 5, 2005). The Fifth Circuit concluded that a school district is not required to provide the parents of a child in special education with prior written notice before it implements a change in the location of a school program, because such a change is not necessarily a change in placement pursuant to the language of the IDEA. In this case a school district transferred a student with a hearing impairment from his neighborhood school that was three miles from his home to another school located seven miles from his home but did not change his program. In addition, the transfer required the student to now take a special education bus, where he previously could take a regular education bus. The court held that prior written notice was not necessary because the IEP placement had not changed, just the location, and the bus change itself was not a “fundamental change.” Moreover, they found no evidence that the changes in the bus or the location of the program in any way altered the fact that the IEP was reasonably calculated to enable him to receive educational benefits by providing him with the “requisite basic floor of opportunity.”

County Sch. Bd. Of Henrico County v Z.P. by R.P., 105 LRP 6113 (4th Cir. February 11, 2005). The Fourth Circuit ruled that the lower court erred when it failed to give appropriate deference to a due process hearing officer’s determination that a proposed IEP was inappropriate and denied the student FAPE. Specifically, the 4th Cir. faulted the district court for reversing a hearing officer’s decision to award private school reimbursement to the parents of a preschool student with autism, stating that the hearing officer’s decision to accept the parent’s evidence over the district’s was not alone a reason for the district court to reject the hearing officer’s findings. The requirement to give deference to the professional educators opinions did not mean that the hearing officer, after giving deference and considering the evidence, was obligated to accept the district’s testimonial evidence over that presented by the parents. The 4th Circuit reasoned that such a rule “would render meaningless the due process rights guaranteed to parents by the IDEA.” II. RESIDENTIAL PLACEMENTS

Lamoine Sch. Committee v. Ms. Z ex rel. N.S., 42 IDELR 172 (D. Me., January 4, 2005) The parents of a sixteen-year-old student with reading, writing, language and math learning disabilities and emotional disabilities were entitled to reimbursement for their unilateral placement of the student in private residential school. A Maine District Court ruled that a due process hearing officer did not err in finding that the school district’s IEP had failed to address the student’s attendance issues and failed to provide adequate educational, behavioral and emotional supports. Westford Pub. Schs., 42 IDELR 162 (SEA MA, December 22, 2004). A hearing officer determined that a district’s “collaborative education” program for an eighteen-year-old student with autism and diabetes was appropriate and denied the parents request for a residential placement. Specifically, the district was offering placement in a collaborative educational center that would allow the student to participate in classroom and community experiences with vocational instruction at a 1-to-2 ratio, a 1-to-2.5 classroom ratio, off-site community experiences, and an LPN or RN aide for insulin shots and medical monitoring. In addition, the district’s program allowed the student the opportunity to transition into an adult-based program once he reached age 22. San Diego Unified Sch. Dist., 42 IDELR 47 (SEA CA. August 12, 2004) In this case a hearing officer upheld the decision of a California school district to place a fifth grade student with bipolar disorder, major depression and childhood psychosis in a residential facility. The hearing officer

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determined that the district had appropriately considered less restrictive alternatives prior to recommending the residential placement. The residential placement was deemed appropriate because it conformed to the student’s behavioral needs and provided him with the advantages of medication monitoring, structure and frequent therapy. III. REMEDIES

McCormick ex rel. McCormick v. Waukegan School District #60, 41 IDELR 148, 104 LRP 32195 (7th Cir. July 7, 2004).

The Seventh Circuit concluded that a ninth-grade student with McArdle’s disease, a rare form of Muscular Dystrophy, who incurred permanent kidney damage because his physical education teacher failed to adhere to his IEP, was not required to exhaust his administrative remedies before bringing suit against his school district and several employees under Section 1983 and several state tort-law theories. He sustained the physical injuries as a result of the teacher’s instructions to run laps and do push-ups in contravention of his IEP. The Court explained that exhaustion would be futile because the student sought remedies for solely physical, not educational or “emotional” injuries, and the IDEA does not provide for remedies in such a situation. Exhaustion of remedies is excused if the IDEA’s administrative processes cannot remedy a student’s damages. It is important to note that the Court carefully distinguished this case from the Charlie F. v. Board of Education of Skokie School District 68, 98 F.3d 989 (7th Cir. 1996) case, where the plaintiffs were required to exhaust the IDEA process even though there were seeking only monetary damages. Thus in McCormick, the outcome turned on the nature of the injury and not the type of compensation requested.

Ortega ex. rel. Ortega v. Bibb County Sch. Dist., 42 IDELR 200, 105 LRP 3846 (11th Cir. January 26, 2005).

The parents of a deceased four-year-old student sued a school district after the student asphyxiated and died when his tracheotomy tube dislodged at school. The suit claimed in part that parents were entitled to monetary relief for the child’s death because the district violated the IDEA by failing to have a person capable of reinserting the tracheotomy tube at the time of the incident in question. At the district court level the school district moved for summary judgment claiming that the child’s death rendered the parent’s IDEA claim moot. The District court denied the motion, determining that it had discretionary authority under the IDEA to grant relief in the form of monetary damages. The issue before the Eleventh Circuit was simply whether tort-like money damages are available under the IDEA. The Eleventh Circuit held that the IDEA does not provide monetary relief and reversed the decision of the district court, remanding with instructions to award judgment to the district. The court reasoned that the IDEA does not provide monetary relief because its primary purpose is to ensure students FAPE and “not to serve as a tort-like mechanism for compensating personal injury.” However, the court noted that the IDEA does not restrict or limit remedies available under other federal laws, and that other statutes serve as possible avenues for recovery for IDEA violations. IV. ATTORNEY’S FEES T.D. v LaGrange School District No. 102, 40 IDELR 32 (7th Cir., November 14, 2003) On November 14, 2003, a decision rendered by the U.S. Court of Appeals for the Seventh Circuit has changed the law in Illinois to preclude a parents’ reimbursement for expert fees when they are prevailing parties and has clarified the law regarding reimbursement of attorneys fees in IDEA cases. This decision, T.D. v LaGrange School District No. 102, 40 IDELR 32, determined that the case of Buckhannon Board & Care Home, Inc. v West Virginia Department of Health and Human Services, 532 U.S. 4598 (2001), which involved the federal Americans with Disabilities Act and Fair Housing Amendments Act, did apply to IDEA cases, and as such, parents who achieve a remedy through settlement agreements thus prior to a hearing or “some sort of judicial imprimatur,” are not “prevailing parties” entitled to the reimbursement of attorneys fees. However, the Seventh Circuit’s opinion in T.D., like the Buckhannon decision, did provide one caveat to collecting attorney’s fees in some settlement situations – if the settlement is not merely private (between two parties), but is filed and ordered through the courts, like a consent decree, then there can be argument that those

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parents would be considered “prevailing parties.” Of course, attorney’s fees are still available to parents deemed prevailing parties through a due process hearing or court action. Doe v. Boston Public Schools, 40 IDELR 176 (1st Cir. February 6, 2004).

The parents of a 19-year-old mentally disabled student sought attorney’s fees despite the fact that they had settled the case just prior to the first day of a due process hearing with the local school district. At the administrative level, the parents requested for the hearing officer to sign and read into the administrative record the settlement agreement, however the hearing officer refused. On appeal, the district court found that Buckhannon applied to IDEA cases and as such, the parents were not “prevailing parties” and were not entitled to attorney’s fees. The appellate court upheld the district court’s ruling, and found that Buckhannon “is presumed to apply generally to all fee-shifting statutes that use the ‘prevailing party’ terminology, including the IDEA,” thus adding the 1st Circuit with the 2nd, 3rd and 7th Circuits.

Evanston Community Consolidated Sch. Dist. No. 65 v. Michael M. and Christine M., 42 IDELR 116 (N.D. Ill. November 24, 2004).

On remand from the Seventh Circuit, the Northern District of Illinois concluded that a student was entitled to 70% of his attorney’s fees. The Seventh Circuit opinion is reported at 356 F.3d 798. The district court judge determined that the parents prevailed on three out of the 11 total issues at the due process level, however those three issues were “at the heart of the parties’ dispute.” The judge determined that it would be difficult to determine how much time was exactly spent on those three issues from reviewing the parents’ attorney’s billing records, and reduced the amount of fees awarded to reflect the degree of success obtained by the student.

Justin B. v. Laraway Community Consolidated School District, 41 IDELR 207 (N.D. Ill. July 23, 2004).

The district court determined that the statute of limitations for filing for attorneys fees begins not from the date of the administrative order, but from the date when the administrative order becomes “final,” which occurs when the time for the district to challenge the decision expires or, if the district proceeds with a judicial challenge, until 120 days after exhaustion of judicial remedies. V. FREE AND APPROPRIATE PUBLIC EDUCATION

Greenland School District v. Amy N., 40 IDELR 203 (1st Cir. February 23, 2004) In this case, the appellate court ruled on a parent’s right to reimbursement of tuition for a unilateral private day school placement. The parents of a ten-year-old girl diagnosed with LD, ADHD and Asperger’s Disorder pulled their child out of the public school after she began suffering academically and required private tutoring services twice a week in order to complete homework assignments. At no time while the girl was still attending the public school did the parents request a CSE or special education services. It is important to note that the mother of this child was a special education teacher herself, to which the appellate court gave weight as the parents were therefore aware of the proper procedures for requesting special education services. Shortly after the girl was unilaterally placed in a private day school, the parents contacted the public school district and requested a psychological evaluation be conducted. The district did conduct a full CSE and drafted an IEP for the girl which recommended placement at the public school with a 1:1 aide, counseling services, speech language services and the use of social stories use in the classroom. The parents refused the recommended placement and filed for due process to receive retroactive reimbursement for her day school placement. The due process hearing officer found in favor of the parents, stating that the district did not provide FAPE to the girl, that it violated its child find obligations by not finding her eligible for services at the public school, and that the child’s return to the public schools was not appropriate and awarded the parents total reimbursement for the day school. On appeal, the district court judge partially reversed the administrative decision, finding that since the girl was unilaterally placed at the private school prior to her being found eligible for services, an administrative court did not have authority to consider the issue of FAPE, only child find issues and found in favor of the parents on that issue. The district then appealed the district court’s ruling. In reviewing the case, the appellate court found that the 1997 amendments to the IDEA established that complaints about services a

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privately-placed disabled student “must be brought through the state administrative complaint system rather than a due process hearing.” (34 CFR § 30.457(a)(c)). The appellate court also stated that “tuition reimbursement is only available for children who have previously received ‘special education and related services’ while in the public school system (or perhaps those who at least timely requested such services while the child is in public school).”

Alex R. by Beth R. v. Forrestville Valley Community School District #221, 41 IDELR 146 (7th Cir. July 15, 2004).

After a hearing officer ordered a special education student who suffered from a rare neurological syndrome and a history of violent behavior be returned to regular classes, the Seventh Circuit Court of Appeals ruled the district acted properly in managing the student’s IEP and placing him in a self-contained program. The Court reasoned that it was proper to consider the student’s disruptive impact on other students in designing his educational program, finding that this component must be addressed in the student’s IEP. In addressing the parents’ argument that the district should have provided additional services in years past to prevent the behavioral crisis, the Court noted the absence of guidance for behavioral intervention plans. Specifically, the Court noted that neither the IDEA, nor its implementing regulations, provide specific substantive components for a behavior intervention plan. Instead, the contents are a matter of state law, local policy and professional practice. Generally, however, the IEP should describe the behavior of the student that is interfering with learning, the expected behavioral changes, and the positive strategies and supports that will be used to change the behavior.