ses fall 2012 all things considered - recent decisions on the written offer of placement and follow...

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All Things Considered

Recent Decisions on the Written Offer of Placement and Follow Through

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Overview How specific is specific? What must be included in a written

offer of placement? What is prior written notice and when

should it be provided? How do we provide a written offer of

placement in private schools and facilities?

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Decisions to be Considered Buckeye USD. How specific does SAI

need to be on an IEP? West Covina USD. What specificity is

required in a FAPE offer? Capistrano USD. Does an IEP satisfy

the PWN requirement? Orange County HCA. What if multiple

residential placements are offered?

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Student v. Buckeye UnionSchool District (OAH 2009)

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Issue Whether the District denied Student a

FAPE by failing to describe in writing on what goals Student would be working during specialized academic instruction (SAI)

Student v. Buckeye Union School Dist. (OAH 2009)

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Pre-K Boy qualified for special education

under speech and language impairment, but exited prior to Kindergarten

Student v. Buckeye Union School Dist. (OAH 2009)

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Kindergarten Student’s

behaviorsincreased

Student v. Buckeye Union School Dist. (OAH 2009)

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1st Grade Student’s

behaviorsincreased

Student v. Buckeye Union School Dist. (OAH 2009)

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2nd Grade Student’s

behaviorsincreased

Student v. Buckeye Union School Dist. (OAH 2009)

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2nd Grade IEP team found Student eligible due to

specific learning disability Behavior was to avoid academics Offered five hours per week of SAI & an

FBA Parents consented to eligibility & FBA

only

Student v. Buckeye Union School Dist. (OAH 2009)

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2nd Grade IEP team reconvened following FBA

Offered to increase SAI to 20 hours per week

Offered to develop goals within two weeks to address elopement and noncompliance

Offered to develop BSP

Student v. Buckeye Union School Dist. (OAH 2009)

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Student Alleged Denial of FAPE by

Failing to specifically describe the SAIOffering to increase services prior to

developing behavior goals or BSP

Student v. Buckeye Union School Dist. (OAH 2009)

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The Law Procedural Violations

Only amount to a substantive denial of FAPE if

Impede child’s right to a FAPE Significantly impede parent’s opportunity to

meaningfully participate; or Cause deprivation of educational benefit

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The Law Definition of IEP

“A Written Statement”

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The Law Content of IEP (including, but not limited

to)How the child’s disability affects involvement

and progress in the general education curriculum

Statement of special education and related services and supplementary aids and services, program modifications or supports

Explanation of extent to which child will not participate with nondisabled children

Anticipated frequency, location, and duration of services and modifications

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The Law Consent

Parent has been fully informedParent understands and agrees in writing

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The Law Direct relationship between present

levels, goals, and services

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The Law Special Education Placement

“Unique combination of facilities, personnel, location or equipment”

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The Reveal

Union v. Smith Single, formal written offer of placement Clear record Eliminates factual disputes Clarifies offer so parent can

choose whether to complain

However . . .

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The Reveal No obligation to provide hour-by-hour

account of SAI implementation Increase in SAI based on sufficient

information

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Lessons Learned Specificity Understandable language Services follow goals

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Fact-Specific OAH Cases No FAPE

St. Helena. No indication of push-in vs. pull-out

Shoreline. No description of level of service and accommodations

Jefferson. Accommodations written throughout document unclear

Cabrillo. Unclear whether services direct or consult

San Francisco. Must include correct percent in general education

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Fact-Specific OAH Cases FAPE

Hacienda La Puente. Location does not equal placement

Montecito. No obligation to respond in writing to parents’ request for retention

San Francisco. No denial of FAPE by failing to describe existence of paraprofessional services in placement

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Student v. West Covina USD(OAH 2007)

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Issues

Whether District failed to document1. Accommodations, behavior plan,

transition services, and ESY2. Consideration of placement options3. Notice of Parents’ right to consent to

part of the IEP4. Offer of placement with sufficient

clarity to implement

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Just the Facts Ma’am. Just the Facts 16-year-old student Parent lived in New Mexico, assigned

education rights to grandmother 2006-07: District offered SDC for

students not on diploma track 2007-08: District offered

SDC for student who couldbe on diploma track

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Just the Facts Ma’am. Just the FactsFor 2007-08, District offered SDC for basic math, English, world history, and

biology Two 30-minute sessions per week of pull-out,

group speech and language therapy I.A. during P.E. “as needed” ESY for two periods per day in SDC and 30-

minutes per week of speech and language therapy

Recommendation for general education elective

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Student Alleged 2006-07

District failed to include accommodations, behavior plan, transition plan to high school, ESY services, and consideration of LRE

District failed to notify parents of right to consent to a portion of IEP

2007-08 District failed to consider parent request for NPS District failed to provide PWN regarding request

for NPS Written offer of placement not clear

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The Law Least Restrictive Environment

To the maximum extent appropriate, children with disabilities are educated with children who are not disabled. Removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily

IDEA, 20 U.S.C. § 1412(a)(5) (emphasis added)

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The Law Partial Consent

If the parent . . . does not consent to all of the components of the individualized education program, those components of the program to which the parent has consented shall be implemented so as not to delay providing instruction and services to the child

Ed. Code, § 56346(e)

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The Law Predetermination

The test is whether the school district comes to the IEP meeting with an open mind, discusses options and considers the parents’ placement recommendations and/or concerns before the district makes a final offer

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The Reveal Accommodations section of IEP left

blank, resulting in a procedural violation that denied FAPE

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The Reveal No requirement to develop a transition

plan to high school, but IEP team must consider whether student had unique need for one (in this case, he did not)

Student required ESY,but IEP did not indicatefrequency, location andduration of ESY

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The Reveal Boxes checked on IEP indicating:

Supplementary aids and services considered in general education

Goals and objectives could not be met in general education w/o special education and/or related services

Placement necessary to meet goals and objectives

Placement located at school of residency

However . . .

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The Reveal IEP did not indicate why Student’s

disability prevented his needs from being met in a less restrictive setting"Considering a request requires

deliberation and an examination of the situation in light of the information provided. It need not be extensive, but it requires a conscious approach with an open mind"

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The Reveal By failing to include required

information, district significantly impacted ability of parent to participate in the IEP process

The fact that mother instructed grandmother not to consent to any component of the IEP was irrelevant

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The Reveal District did not fail to notify parents of

right to consent to only a portion of IEP because that information included in procedural safeguards

Written offer of placement not clear because staff could not consistently testify about their understanding of the placement

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Lessons Learned Determination of LRE requires

discussion of supplementary aids and services, accommodations, and modifications

Include those items in IEP and make sure those items are transferred from assessment reports if appropriate

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Lessons Learned Beyond statutory transition planning,

IEP team should consider student’s needs when any change occurs and document whether student requires transition supports

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Lessons Learned Describe ESY services with same level

of specificity as the offer of placement

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Lessons Learned Especially in the age of computerized

IEPs, make sure team discusses placement options; it need not be extensive, but absent a discussion, the placement offer can appear predetermined

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Lessons Learned Make sure team, including parents and

staff, understand the placement offer One test is to pretend that the student

has moved to another state: Could a new teacher or provider understand and implement the IEP as written?

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Student v. Capistrano USD(OAH 2008)

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Issue Whether the District failed to provide

prior written notice of its refusal to implement services that were listed on an IEP

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Facts: Who is . . . 18-year-old student

passed the CAHSEE, earned regular high school diploma

During sophomore year, parents requested Fast ForWord

District assessed, offered 30 sessions of Fast ForWord and 55-minutes per week of speech and language therapy

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Facts District offered mileage reimbursement

to NPA for Fast ForWord Parents declined because of distance,

requested non-certified agency District offered to reimburse parents

for Fast ForWord at preferred agency Parents initially declined, but later

agreed

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Facts

During the next school year, District offered30 additional sessions of Fast ForWord via

parent reimbursementMath tutoring, three sessions per week

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Facts Problems ensued

Parents no longer able to front Fast ForWord, but their agency became an NPA, District sent a master agreement

However, the agency would not provide services without District funding a licensing fee with Fast ForWord

District offered to fund licensing fee only if Student attended sessions

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Facts And more problems

District inadvertently failed to provide speech and language therapy

District attempted to provide math tutoring, but Student refused because he didn’t like the tutor

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Student Alleged District failed to give prior written

notice ofFailure to provide Fast ForWord servicesFailure to provide speech and language

therapyFailure to provide math tutoring

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The Law Prior Written Notice (PWN)

Required when an agency Proposes to initiate or change the

identification, evaluation, or educational placement of a child or the provision of FAPE to the child; or

Refuses to initiate or change the identification, evaluation, or educational placement of a child or the provision of FAPE to the child

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The Law Content of PWN

Description of action proposed or refusedExplanation of whyDescription of evaluation procedure,

assessment, record or report used as basisNotice of availability of procedural

safeguards and how to obtainSources for parents to contactDescription of other relevant factors

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The Law IEP as PWN

As long as IEP contains all the required elements, IEP document can serve as PWN

Proposal to revise an IEP triggers right to PWN

PWN should be provided after the agency’s decision on a proposal or refusal, but a reasonable time prior to implementation

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The Reveal Fast ForWord: District should have

provided PWN of refusal to implement services, which resulted in a loss of educational benefit

Math tutoring: District attempted to implement service and Student refused; did not trigger right to PWN

Speech and language therapy: District denied Parents the right to meaningfully participate when it failed to notify them of its failure to implement

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Lessons Learned PWN must be provided prior to a

proposal or refusal that has already been discussed, but not yet implemented. It does not replace a required IEP team discussion

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Lessons Learned Be wary of any difficulties in

implementing a service. A refusal to implement a component of the IEP can trigger the right to PWN

If you make a mistake when implementing a service, respond in a child-centered manner that focuses on the needs of the child

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Student v. Orange County Health Care Agency (OAH 2008)

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Issues

1. Whether a public agency can make multiple offers of FAPE in private facilities pending acceptance

2. Whether special education supports in a residential placement must be documented on the IEP with specificity

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Facts 17-year-old girl,

parents divorced Behaviors escalated

in high school, father placed her at a residential facility in Provo, Utah

District assessed, found her eligible under ED

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Facts CMH subsequently assessed, determined

that Student required residential placement CMH could not consider Provo, Utah

placement for the following reasons: Utah required student to leave at 18; Student

might require longer stay Provo was lock-down facility; Student required a

more nurturing approach Provo did not have capability to implement

transition plan Provo was a for-profit facility

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Facts At IEP meeting, CMH offered four

possible placements CMH requested parent’s authorization

to send applications; parent refused CMH obtained acceptance from facility

in Laramie, Wyoming based on general description

CMH provided letter to parent offering Laramie placement

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Student Alleged CMH predetermined placement at

Laramie facility and failed to consider parent’s request for Provo facility

CMH failed to make a single, formal offer of placement

CMH failed to describe the frequency, location, and duration of special education and related services offered at Laramie facility

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The Law As long as program and/or services

meet student’s unique needs, school districts have discretion to select program or service providers

School districts deny parents the right to meaningfully participate in the IEP process when they provide multiple offers of placement and require the parents to select one

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The Reveal No Predetermination

School district staff facilitated participation of parents and staff at Provo--we hope CMH sent a card

CMH’s refusal to consider Provo facility was based on statutory prohibition against contracting with for-profit residential facilities

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The Reveal No offer of placement until specific

facility identified and communicatedCMH sought to shorten the application

process by offering four options and seeking acceptance concurrently

CMH completed the offer by sending notice within a reasonable time after options presented

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The Reveal Frequency, location, and duration

CMH denied parents the opportunity to participate in the IEP process by failing to identify the frequency, location, and duration of special education and related services

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Lessons Learned School district staff must consider,

consider, and then consider However, after considering, the child is

entitled to your professional recommendation

Offer what you believe is FAPE, notwhat you believe the parentswill accept

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Lessons Learned When offering placement in facilities

that require acceptance, remember that the offer is not completed until you make a single, formal offer of placement in a facility that will accept the student

Do it in an IEP team meeting!

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Lessons Learned Room and board is a related service. It

must relate to a special education placement IEP team should consider whether a child

requires room and board to benefit from that placement, not the other way around

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Lessons Learned Same level of specificity for

Special education and related services at private facilities

Special education and related servicesat public facilities

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Conclusion The written offer --it's all about clear

communication with the parents And remember, if staff do not

uniformly understand the placement, most likely the parents do not either

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Time for Questions

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Time for Lunch!

Be back here by 1:00 p.m.