Ohio School Boards Association BYoT programs bring new challenges, opportunities for school districts Dealing with unpaid fees and fines Another reason for Ohio public schools’ fiscal woes School district contract settlements May 2012 IEP development 101: How to avoid legal pitfalls and litigation by Christine Cossler Walter & Haverfield LLP The Individuals with Disabilities in Education Act (IDEA) governs the way educational institutions develop programming and services for students with disabilities to give them a “free appropriate public education” (FAPE). The act, most recently updated and reauthorized in 2004, also governs how states and public agencies provide early intervention, special education and related services to children with disabilities. In the quest to develop individual education programs (IEPs) based on IDEA requirements, many school districts encounter a number of common pitfalls — some of which can land them in a courtroom. IEP basics Under IDEA, the IEP must be a written statement for each child with a disability that is developed, reviewed and revised by a team of educators. A typical IEP, under published IDEA regulations, must include the following components: l statement of the child’s present levels of academic achievement and functional performance; l statement of measurable goals designed to meet a child’s needs that result from disability and enable the child to be involved or make progress in the educational curriculum, as well as other educational needs; l description of benchmarks, or short-term objectives, for children who take alternate assessments for achievement standards; description of how the child’s progress in meeting goals will be measured and reported, as well as how often; l statement of the special education and related services and supplementary aids and services provided to the child or on behalf of the child; l statement of any individual appropriate accommodations necessary to measure academic achievement and functional performance of the child on state and districtwide assessments or IEP team-determined alternate assessments (including a statement as to why the child cannot participate in standard assessments). l Legal considerations While these requirements are straightforward, they can be fraught with pitfalls if not implemented with care, due to procedural errors and violations that, in turn, can send educational institutions into a courtroom in defense of their IEP development practices. A seminal IDEA case set the standard for future legal standards and scrutiny, reaching the U.S. Supreme Court. The high court held in Board of Education of the Hendrick Hudson Central School Dist. v. Rowley that local districts must provide a “basic floor of opportunity” to disabled students; they are not required to offer a “potential maximizing education.” Also under Rowley, courts are to determine if the educational institution complied with the procedures of IDEA and if the IEP is reasonably calculated to enable the child to receive the necessary educational benefit. Since Rowley, many courts have found a denial of FAPE based on procedural errors in IEPs. In 2004, IDEA was amended to clarify that a denial of FAPE may be found based on a procedural error only if the procedural inadequacies impeded the child’s rights to a free appropriate public education, significantly impeded the parents’ opportunity to participate in the decision-making process or caused a deprivation of educational benefit. Denial of parental input Of the procedural inadequacies identified in the amendments, the most common are those that significantly impede the parents’ opportunity to participate in the decision-making process regarding the provision of FAPE to the child. This most often occurs in the IEP process. In fact, a number of procedural and substantive IEP violations, standing alone, may be considered to be a denial of FAPE. Simply put, educators should not engage in any action that appears to be a predetermination of placement or appears to deny parental input into the decision-making process. So, what does this mean in practical terms? Parents have a significant voice in the IEP process. IDEA requires that parents be afforded an opportunity to participate in meetings on the identification, evaluation and educational placement of the child and the provision of a free appropriate public education. The school staff may meet in advance, but cannot finalize the plan prior to the official meeting with the parents. Additionally, a draft document may be prepared in advance for an IEP meeting, but it cannot be presented at that meeting as final. It must be cited as a working draft instead of a “take it or leave it” document. To ensure IDEA compliance on parental involvement, follow these steps when preparing a draft IEP: l provide the parents with a copy of any draft in advance of the IEP meeting so they can review the information; l stamp or mark each page as “draft”; l allow parent input into the student’s draft IEP goals; l indicate that the draft IEP contains preliminary recommendations for review and discussion; l allow extensive involvement for parents in discussion at the IEP meeting and consider the information they provide; SMN Ohio School Boards Association 8050 N. High St., Suite 100 Columbus, OH 43235-6481 (614) 540-4000 or (800) 589-OSBA fax: (614) 540-4100 l www.ohioschoolboards.org OSBA President: Sharon E. Manson, Waverly City and Pike County Career Technology Center OSBA Executive Director: Richard Lewis, CAE Editor: Renee L. Fambro, deputy director of labor relations Layout and design: Angela Penquite, communication design manager A one-year subscription to School Management News is $185 for paper subscriptions; $150 for electronic subscriptions. For more information, contact Ann Herritt at the address or fax number above or email [email protected]. SMN is published monthly by the Ohio School Boards Association. Postage paid at Westerville, Ohio. Postmaster: Send address changes to: SMN, Attn.: Mailroom, Ohio School Boards Association, 8050 N. High St., Suite 100, Columbus, OH 43235-6481. © 2012 Ohio School Boards Association OSBA leads the way to educational excellence by serving Ohio’s public school board members and the diverse districts they represent through superior service and creative solutions. 2 incorporate, with good faith consideration, parents’ suggestions and document that you did so. l Computerized IEPs While this might be the age of technology, you must tread carefully if you have moved to a computerized IEP platform, as various problems can arise when IEP options are limited by the scope of the computer program. In one situation, Rockford (IL) Sch. Dist. #205, 352 IDELR 465 (OCR 1987), it was determined that computer-generated IEPs lacking a clear statement of current levels of educational performance, annual goals or short-term objectives violate IDEA. In many cases, it is held that computer-generated IEPs are not “readily comprehensible” to parents. When using a computer-generated IEP program, tailor each IEP to the student in question so that you don’t end up with a “mindless” IEP. Be A member benefit: arbitration referral service As a membership service, the OSBA Division of Management Services maintains an arbitrator referral service. With this OSBA benefit, a school district with a grievance proceeding to arbitration can send us a list of the arbitrators, and we will provide guidance as to which arbitrators to select and which are best to avoid. Turnaround time is two days. By taking advantage of this service, districts can receive a helpful recommendation based on our insight into the arbitrator’s past decisions, feedback and rankings from other state associations. While the service is free, we ask that you forward a copy of the arbitrator’s decision — good or bad — so that we may keep our files current. School Management News careful to ensure that another student’s name isn’t included by mistake on any of the pages. A lawsuit arose out of such a scenario. Also, don’t use a program that contains technical codes, symbols and markings that might not be readily understandable to parents. Availability of services Another common pitfall on the part of the IEP team is to make educational recommendations and decisions based on the availability of services. Under IDEA, the availability of services is not a relevant consideration. Instead, recommendations must be made based upon every student’s individual educational needs. In the 2004 case, Deal v. Hamilton Bd. Of Education, the U.S. Court of Appeals for the Sixth Circuit issued a wide-ranging decision about the standard of IEP development and availability of services. The court ruled that the district denied FAPE, based partly on the fact it appeared to have an unofficial policy of refusing to provide one-to-one applied behavioral analysis programs because it had previously invested in another type of program. This policy, under the ruling, demonstrated that the school staff “did not have open minds and were not willing to consider the provision of such a program,” despite the student’s demonstrated need for it. You’re probably asking yourself what the consideration of availability in services means in practical terms and how will it play out in your school district. When it comes to developing an IEP based on availability of services, here are a few general considerations to keep in mind: l Make service decisions based upon the needs of the child. l Avoid blanket policy declarations regarding services. l Don’t make service recommendations or decisions based upon staff schedules. l Be careful how you phrase the decision or recommendation to parents. l Have the IEP drafted by trained personnel, without regard to the availability of services. l Consider offering an alternative: May 2012 “Our general framework is X, but we can look at Y for Billy.” l Always bring it back to the individual student’s needs. Cost considerations There’s no question about it — in this challenging economy, budgets are tight. But, cost considerations cannot come into play during IEP development. You can’t make educational recommendations or decisions around any IEP based solely on cost. Generally, cost is not a defense for the failure to offer services that are required to meet a student’s individual educational needs. Decisions must be made based on the needs of the child. When talking with parents during the IEP meeting, carefully phrase the decisions or recommendations. Do not use statements to deny services, such as, “I’m sorry, but to provide that would just be too expensive,” or “I am certain that you’ve read in the paper how financially strapped the district is.” Lack of sufficient resources and staff is not a proper justification for the failure to provide FAPE. Worse, don’t stress costs as they apply to other students in the district. Do not say things along the line of, “If we did that, it would be taking money away from the other students,” or “Do you know how much that would cost if we did that for all of our students?” Instead, the services must always be tied back into what is necessary to provide an educational benefit or FAPE. If you do not believe the data supports the need for the services being requested by the parents, you must be able to support the position that the services are not necessary. Meeting attendance Under IDEA, all necessary participants in the IEP process must be present at a meeting. The required IEP team members include the following: l Parents. l At least one regular education teacher if the child is, or may be, participating in the regular education environment. l At least one special education teacher, or if appropriate, at least one of the Need arbitration and SERB representation? Remember OSBA! OSBA is dedicated to providing school districts with quality arbitration and SERB representation at a reasonable cost. Our professional labor team is highly trained in the law and labor relations. We have represented a large number of school districts. Our emphasis is on quality service and assistance at a reasonable price. We offer a flat rate for all arbitration and SERB representation matters — just $2,000 per case, plus mileage. No law firm can beat that price! For more information, contact Renee Fambro at (614) 540-4000 or (800) 589-OSBA. 3 child’s special education providers. l A school district representative who is qualified in special education instruction, general curriculum and availability of resources. l An individual who can interpret the evaluation results. This person may be a member of the team already described. l Other individuals who have knowledge or special expertise about the child, including appropriate related services personnel. l The child, if appropriate. An IEP team member can have an excused absence from a meeting if the parent and district agree that attendance of the member in question is not required because the individual’s area is not being modified or discussed. If the area is being discussed, excusal will require written consent by the parent and consent by the district. Also, the member must submit in writing to both the parents and IEP team his or her input into the development of the IEP prior to the meeting. In the 2001 case, Pitchford v. Salem-Keizer Sch. Dist. No. 24J, it was determined the IEP was sufficiently flawed to find denial of FAPE because no district representative who was qualified to provide or supervise the provision of special education services attended the IEP meeting in question. Thus, the absence of the district representative forced parents to accept whatever information was given to them by the student’s teacher. They also did not have anyone available at the meeting to answer questions about the child’s program. Additionally, the requirement that a regular education teacher must be present if the student is receiving any general education services also must be carefully upheld, as such an absence could be construed as a denial of FAPE under IDEA. Parents’ ‘experts’ Parents are entitled to bring “other individuals who have knowledge or special expertise regarding the child” to the IEP meeting as long as it does not violate confidentiality. You can ask ahead of time if parents are bringing anyone, but they don’t have to tell you. Further, if they do bring someone without telling you in advance, that does not give you grounds to have them excused from the meeting. Some parents may want to bring their attorney to the meeting; you cannot prevent this. If this is the case, the district may want to bring its legal counsel to the meetings, as well. You also cannot ask the people they choose to bring not to participate, even if the guest is a neighbor. Individuals who attend an IEP meeting are participants and are permitted to actively take part. It is all right to enforce the “knowledge or special expertise” requirement, but such interpretation must be liberal, and parents generally can establish that a requested participant has knowledge or special expertise. IEP content One of the biggest pitfalls for school districts during IEP development is being too specific in content and providing too much detail or too many promises. The rule of thumb to remember when it comes to drafting an IEP is this: If you write it on the IEP, you’ve bought it. A well-crafted IEP should set forth sufficiently described goals and objectives, but it shouldn’t be so detailed that it can substitute for a daily lesson plan. Courts have ruled that there is no requirement that a student’s precise daily schedule must be developed when determining appropriate IEP placement. Instead, the daily schedule should be developed by a special education team at the school based on the IEP. Additionally, don’t include decisions about specific teachers, curriculum, methodology or school sites based upon parental preference. IDEA, as upheld by numerous court rulings, does not permit parents to dictate the specific teacher and methodology — those are a team decision. Cossler is a partner at Walter & Haverfield LLP and focuses her practice on private and public sector labor and employment law and school law. BYOT programs bring new challenges, opportunities for school districts by Kenna Haycox policy consultant At some point in our lives, most of us have used the phrase “BYO,” or “bring your own” something-or-other. These days, the phrase BYO is heard frequently in OSBA’s policy department, and we are not talking about receiving a lot of party invitations. We are hearing “BYOD,” bring your own device, or “BYOT,” 4 bring your own technology. Student use of personal electronic devices in the classroom remains a hot topic. BYOT programs have become more popular for several reasons. These programs help teachers educate and engage students in a manner that prepares them for the 21st century workforce. A BYOT program also enables the district to integrate a higher level of technology into the classroom at minimal cost to the district. It is important to understand BYOT programs and how they may affect policy in your district. Guidelines for using mobile technologies in the classroom need to be created with input from appropriate stakeholders. Clear expectations and guidelines on personal mobile technology use in the classroom are essential for successfully implementing a BYOT program. Mobile technologies can be classified as devices that have Internet "This article has been reprinted with permission from the Ohio School Boards Association, publisher of School Management News (May, 2012)." School Management News