what’s wrong with the idea? a close look at the current .... keith manna thomeczek... · iho=...

10/3/2016

© 2016 National School Boards Association. All Rights Reserved. 1

What’s Wrong with the IDEA? A Close Look at the Current Law’s Challenges and Recommendations

for Reauthorization

Andrew MannaChurch Church Hittle &

[email protected]

Jim KeithAdams and Reese

[email protected]

Jim ThomeczekThomeczek & Brinkjames.thomeczek@

tblawfirm.com

10/3/2016


The IDEA: An Extraordinary Success!

• Passed in1975 as the Education for All Handicapped Children Act

• Amended several times in1970’s and 80’s• Renamed IDEA in 1990• Reauthorized in 1997 and2004.

The IDEA: Rights and RequirementsRights for public school students with disabilities and their parents:

• FAPE in the LRE

• IEP

• IEE

• Due Process

Requirements for school districts:

• All of the above +

• Reporting

• Limited responsibility for private school students

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The IDEA: Federal Funding

Congress promised 40% of APPE for each SWD.

Current appropriations 16%

The IDEA Today• Over 6 million SWD (approx. 13% of all students) have

access to a free appropriate public education in the least restrictive environment.

• Generally, families and school

systems work collaboratively.

• Generally, families are

satisfied with the special

education services their children receive.

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The IDEA Today: Growth with Each Reauthorization

• Increasingly detailed requirements for states, school districts, and families

• discipline

• placement

• due process procedures

• 2004 reauthorization included some changes focused on improving student outcomes, BUT

• Due process hearing decisions, court decisions, and regulations generally have focused on

compliance.

The IDEA Today: Due Process Contentious

School attorneys note:

• Contentious dispute resolution process

• Adversarial atmosphere

• Strained relationships between some families and the schools serving their children.

• Districts agreeing to parent demands rather than incur the cost of due process.

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Recent AASA Survey of 200 Superintendents

• 95% said staff stress high during due process and subsequent litigation

• 12% said more than half the time, sp. ed. staff left the district or requested transfer out of sp. ed. after due process; almost a quarter said this happened 10‐25% of the time.

Degree of stress in a due process hearing or subsequent litigation?

Superintendents' ResponsesVery High

High

Moderate

Low

Very low

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Would you support an IDEA provision allowing a state‐funded impartial party to attend IEP meeting and assist the parties in reaching a decision?

Superintendents' Response

Yes

No

Unsure

Superintendents Survey, Continued

• Nearly 80% took cost to comply into consideration when deciding whether to consent to a parent’s request.

• Nearly 40% of respondents stated they consented to “unreasonable, unnecessary or inappropriate requests by parents” if the cost to comply was less than 20% of the cost to move forward with due process.

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Example #1

$0

$5,000

$10,000

$15,000

$20,000

$25,000

$30,000

$35,000

$40,000

Example 1

Staff Time

Misc. HearingExpenses

IHO

CourtReporter

Staff Time= $23KMisc. Hearing Expenses= $ 1KIHO= $ 9KCourt Reporter= $ 6KTotal = $39K+

Example #2

$0

$5,000

$10,000

$15,000

$20,000

$25,000

$30,000

$35,000

$40,000

$45,000

$50,000

Example 2

IEE

Staff Time

Reimbursement

Court Reporter

IHO

Staff time= $22kIEE= $ 4KReimbursement= $ 5KIHO= $10KCourt reporter= $ 6KTotal= $47K

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$0.00

$50,000.00

$100,000.00

$150,000.00

$200,000.00

$250,000.00

Example #3

Staff Time

Expert Fees

Family Reimbursement (Legal Fees)

IHO

Court Reporter

Family Reimbursement (residential placement, ongoing expense)

Example #3Staff Time= $ 39KExpert Fees= $ 11KFamily Reimbursement= $145K(Legal Fees)

IHO= $ 23KCourt Reporter= $ 21KFamily Reimbursement= $ 4K(Residential Expenses, ongoing)

Total= $242K

GOALS FOR IDEA REAUTHORIZATION

National School Boards Association Council of School Attorneys

10/3/2016


Goals for IDEA Reauthorization

• To focus on progress and demonstrable positive outcomes for all students;

• To promote collaboration and trusting relationships between families and schools;

Goals for IDEA Reauthorization• To reduce complexity of compliance and to provide guidelines and flexibility to schools.

• To fully fund IDEA at the level (40%) promised. o Special education cost estimates range from $80 billion to $110 billion per year.

o Federal contribution: less than 20%.

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RECOMMENDATIONS

Practice‐based proposals of the NSBA Council of School Attorneys

Retain Current IDEA Standards That Provide State/Local Flexibility

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Let’s keep:• Definition of FAPE as defined in BOE v. Rowleyand cases applying it (but see Endrew F.!);

• Flexible Response to Intervention model;• Burden of proof standard as provided in state law and broad rule in Schaffer v. Weast;

• Parties pay own expert witness fees;• No attorney’s fees for mediation or settlement

• State control over seclusion and restraint;

Let’s keep (cont’d):

• Mapping of cochlear implants to be done by medical providers, not schools;

• Prohibition on general damages awards by hearing officers

• Deference to IEP process• 2‐year statute of limitations on awards of compensatory services

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PROPOSED CHANGES TO HEARING PROCESS

National School Boards Association

Council of School Attorneys

Due Process Hearings Option #1: Comprehensive Simplification Pilot

Current System:Due Process Hearing

Proposed System: File Complaint

Contentious Collaborative

Long 30‐day process

Costly Shorter= cost savings

Possible Discovery, Multi‐day Hearing

Presentation of facts by both sides

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Comprehensive Simplification

District Level Ombudsman

Complaint filed to State

Mandatory Mediation

Hearing/ Presentation (no witness examination)

Comprehensive Simplification

• 30 day total process

• Cost borne by State

• Existing appeal system available to both parties

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Comprehensive Simplification• Example: Vermont

oWithin 4 days of the complaint, state DOE arranges conference call to discuss options short of hearing (Mediation, Resolution)

oFace‐to‐face prehearing conference to narrow issues and disclose evidence

oHearing limited to 2 days (one for each party)

Due Process Hearings Option #2: Refine Current Pre‐Hearing ProcessChanges to Pre‐Hearing Process:

1)To be considered at hearing, ‘proposed solutions’ must have been presented to and considered by IEP team.

2)Party filing due process complaint must be more specific about requested action.

3)School has more than 10 days to respond to Due Process Complaint (10 business days).

10/3/2016


Refine Current Pre‐Hearing Process, (cont’d)

4) Require some form of alternative dispute resolution, with state opt‐out under certain conditions.

• 5) Add qualification requirements for mediators and permit attendance by attorneys.

Refine Hearing Process• Decrease statute of limitations to six months

• Narrow and limit issues presented at hearing

• Require disclosure of documents and witnesses prior to hearing

• Limit evidence of progress at private placements

• Require deference to educational experts

• Require deference to IEP team decisions

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OTHER PROPOSED CHANGES TO IDEA

National School Boards Association

Council of School Attorneys

Attorneys’ Fees to Prevailing Party

IDEA 2004 ReauthorizationProposal

Allows an award of attorneys’ fees, but ONLY to a parent who has prevailed, NOT the School unless unethical

District should have right to recoup its attorneys’ fees if it prevails on one or more issues

10/3/2016


IEPs and IEP meetingsIDEA 2004 Reauthorization Proposal

Complex IEP meetingattendance policies (mandatory, non‐mandatory, excusal)

Increased flexibility by defining regular education teacher as one who may teach the student

Decision‐makingauthority and process vague

Decisions reached by consensus of public school personnel (safeguards may still be utilized by parent)

Independent Educational Evaluations‐IDEA 2004

School Parent

10/3/2016


IEEsIDEA 2004 Reauthorization

Proposal

Parent may request an IEE with few, if any, limitations

Parents must challenge within 30 days after evaluation considered by IEP team

Parent bears burden of proving school’s evaluation insufficient

Current Educational Placement (“Stay Put”)

IDEA 2004 Reauthorization Proposal

Stay‐put shifts to placement ruled by IHO if parent prevails and appeal filed

Stay put should be last agreed‐upon placement during all appeals

Not necessarily true if School prevails

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Example of Stay‐Put problem• Billy’s placement has been the local program “Y” which is “stay‐put.” Parent unilaterally removes student to residential placement “X.” Hearing Officer agrees with the parent so “X” becomes new stay‐put placement under IDEA even on appeal by the School.

Residential/Private/Unilateral Placement

IDEA 2004 Reauthorization Proposal

Supreme Court: parents need not try program proposed by LEA to get reimbursement for private unilateral placement

Child must try LEA‐proposed program for 30 days; LEA has opportunity to address parent’s concerns

Courts differ on when costly residential placement is appropriate

School may only be responsible for residential placements that are essential for the students to receive meaningful educational benefit, and primarily oriented toward child’s education

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Health Insurance & Other Government Agencies

• Problem: School bears financial burden of providing services, even when there are other funding sources available (Medicaid, private insurance, state mental health system etc.)

• Problem: Few states require private insurance to provide coverage for behavioral treatments for those with autism and PDD.

• Proposal: Create a mechanism for school districts to bring relevant state agencies before a hearing officer to resolve payment disputes

Focus on Educational Outcomes and Successes; Do Not Over‐Emphasize Compliance Issues:• Continue to enhance the success of early intervention and response to intervention (RTI) programming.

• Promote informed and informal collaboration between families and schools in developing appropriate IEP’s.

10/3/2016


Clarify roles of 3 overlapping statutesAmericans with Disabilities Act, Section 504 of the Rehabilitation Act of 1974, and IDEA cover school district obligations to students with disabilities.

Problem: Section 504 regulations require “FAPE.”Problem: DOJ’s ADA regulations require obligations beyond and in addition to IDEA. Proposal: Clarify that the IDEA supersedes the other two laws in the schools’ obligation to provide FAPE to SWDs. In other words, if a school district is meeting its obligations regarding providing FAPE for SWDs, it is meeting its obligations under the other statutes.

THANK YOU!

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