Major Changes to Special Education Law 2006 Presented by Diana Autin, Esq, Executive Co-Director, Statewide Parent Advocacy Network (SPAN) Statewide Parent Advocacy Network 2006 For permission to reprint, contact 973 642 8100 x 105
Pre-Referral Interventions Early Intervening Services Up to 15% of IDEA Part B funds may be used for early intervening services for students not identified as needing special education but who appear to need additional academic & behavioral support to succeed in a general education environment
Pre-Referral Interventions Early intervening services Based on peer reviewed research Reading programs using criteria of National Reading Panel Positive behavior supports
Pre-Referral interventions Early intervening services Districts identified as having significant racial disproportionality MUST use 15% of their Part B funds to provide early intervening services
Pre-Referral Interventions Intervention & Referral Services Interventions in general education setting should be provided for students exhibiting academic difficulties prior to referring a student for evaluation
Pre-referral interventions Referral to Intervention & Referral Services teams General educators maintain written documentation, including data on types of interventions used, frequency & duration, and effectiveness If analysis reveals not effective, refer the student for evaluation
Evaluations Must be conducted & IEP developed & implemented within 90 days of parental consent, unless Parent repeatedly fails or refuses to produce their child for evaluation Child moves to another district in the middle of the evaluation process
May not require the child to obtain a prescription or take medication as a condition of attending school or receiving an evaluation Medication
Evaluations If the child moves: If district is making progress to ensure prompt completion, then district & parent may agree on a specific modified timeline to complete the evaluation
Independent Evaluation District has opportunity to conduct requested evaluation if had not conducted as part of their evaluation 10 days of receipt of request to decide 45 days to conduct 20 days to request a hearing if doesn t want to pay for independent evaluation
Independent Evaluation If parent requests independent evaluation for an evaluation that was part of district s evaluation, district must either: Request a hearing within 20 days, or Pay for the independent evaluation
Re-evaluations Re-evaluation must be completed sooner of: 60 days after parent consent Expiration of 3 year timeframe
Eligibility - SLD Districts may use either Discrepancy model Response to Intervention method (child s response to scientific, researchbased intervention ) Oral expression, listening comprehension, written expression, basic reading skills, reading fluency or comprehension, math calculation, math reasoning
Eligibility - Preschool Between 3-5 Developmental delays in physical, cognitive, communication, social & emotional or adaptive development Must use appropriate diagnostic instruments 33% delay in one or 25% delay in 2 or more domains
Consent & Revocation If parent refuses to consent to implement initial IEP: District may not request a hearing to override refusal District has no obligation to provide FAPE
Consent & Revocation Parents may revoke written consent at any time Not retroactive Doesn t negate any action that occurred after consent provided or before consent revoked District may request hearing to override
Pre-IEP Meeting Copy of reports & documentation of eligibility provided to parent at least 10 days prior to meeting Notice must be provided prior to start of meeting if intend to use audio-tape recorder
IEP Meeting Scheduled at mutually agreeable times & places Parents may participate through alternative means Videoconferencing Conference calls
Excusal of Team members Requires: Prior written notice sent with notice of the meeting 15 days before the meeting Written input of team member provided 15 days before the meeting Parent consents in writing
IEP Meeting At conclusion of IEP meeting, family provided with either: Copy of IEP Written notes setting forth the agreements reached at the meeting
Present levels of academic achievement & functional performance Measurable, detailed annual academic & functional goals to enable the child to be involved in & progress in general curriculum & meet child s other educational needs IEP Contents
IEP Contents Goals must apprise parents & educators of the expected level of achievement for each goal Short-term objectives or benchmarks
IEP Contents Services to be provided Special education & related services & supplementary aids & services Services based on peer-reviewed research to the extent practicable
IEP Contents District must maintain documentation that it has informed each of the child s teachers & service providers of their specific responsibilities in implementing IEP
How will parents be informed, at least as often as general education parents receive report cards, of their child s progress toward goals? IEP Contents
IEP Contents May not require the child to obtain a prescription or take medication as a condition of attending school or receiving special education services
Transferring Students From NJ NJ: CST conducts immediate review of evaluation info & IEP If not available, district takes reasonable steps to promptly obtain student records
Transferring Students From NJ NJ: District implements IEP as written if parents & district agree, or Conducts all needed assessments & within 30 days of student s enrollment, develops & implements new IEP In the interim, provide comparable program to current IEP
Amending the IEP Changes to IEP after annual meeting may occur: If parent makes a written request for a specific amendment & district agrees, or Districts provides parent with written proposal to amend and parent consents in writing within 15 days
Amending the IEP Amendments must be incorporated in an amended IEP or addendum which must be provided to the parent within 15 days of the receipt of parental consent for the change
Amending the IEP IEP of a student in a receiving school may only be amended by the IEP team of the district of residence
Program Options: LRE For preschoolers with disabilities, team must review the preschool day to determine what accommodations & modifications may be required to allow the preschooler to participate in a general education classroom and activities
Program Options: LRE Districts must consider placement in general education with supplementary aids & supports: Curricular modification Instructional modifications Specialized strategies Assistive Technology Teacher aides Related services, including integrated therapies Consultation services In-class resource programs
Program Options: LRE Team may consider alternative programs ONLY if a student cannot remain in the general education setting with supplementary aids & services for all or part of school day Student may NOT be removed solely because of needed modifications to general education curriculum
Prompting, cueing, & redirecting student participation Reinforcing personal, social, behavioral, & academic learning goals Organizing & managing materials & activities Implementation of teacher-designed follow-up & practice activities Teacher Aides
Consultation District must: Provide regular time for consultation between aide & educators Establish written policies regarding consultation time Consultation may also be provided as a service by a related services provider, special educator, or CST member to general educator &/or aide
Consultation must be specified on IEP including frequency & duration Consultation may include: Development & demonstration of techniques & strategies Data collection on effectiveness of techniques & strategies Development of positive behavior supports Consultation
Program Options-LRE For students in out-ofdistrict placements, IEP: Sets forth how student will participate with nondisabled peers in extracurricular & nonacademic activities Delineate how this will be achieved Consider each year activities needed to transition student to less restrictive placement
Transition & Graduation NJ retained requirement that districts begin transition planning in the IEP meeting that develops the IEP for the year in which the student turns 14
Transition & Graduation 14-year old IEP: Statement of student strengths, interests & preferences Identification of courses of study & related strategies consistent & intended to help develop or attain post-secondary goals Description of need for consultation with other agencies Statement of needed interagency linkages & responsibilities
Transition & Graduation 16-year old IEP: Appropriate measurable post-secondary goals based on age-appropriate transition assessments Appropriate transition services designed within a results oriented process to facilitate movement from school to post- school activities Post secondary education Vocational education Integrated employment Adult services Independent living Community participation
Transition & Graduation For students with disabilities potentially eligible to receive services from DDD, district must provide necessary materials to parent to apply for those services pursuant to Uniform Application Act
Transition & Graduation When student graduates or ages out, district provides: Written summary of student s academic achievement & functional performance prior to date of student s graduation or conclusion of school year in which s/he exceeds age of eligibility Recommendations to help the child meet post-secondary goals
Functional Behavior Assessment Goals are to: Determine the causes of a behavior, and Identify likely interventions Functions are the things that sustain behavior - what the child gets from doing the behavior
Functional Behavior Assessment Behaviors that may look alike (slamming a book shut) may serve different functions (getting attention; avoiding work that s too hard) Different behaviors (studying hard, fighting at recess) may serve the same function (getting attention from adults)
Steps of FBA Pinpoint the behavior and define it in concrete, specific terms Label according to seriousness: destructive, disruptive, distracting Prioritize
Steps of FBA Answer key?: Who is present when the behavior tends to occur? When it almost never occurs? What is going on when the behavior tends to occur? Almost never occurs?
Steps of FBA Answer key?: When does the behavior tend to or rarely occur? Where does the behavior tend to or rarely occur? How often does the behavior occur per hour, day, week? How long per episode?
Steps of FBA Observe & record antecedents, behaviors, & consequences When? (Time, day, date) What happened beforehand? Describe the behavior. How intense, how long, how many? What happened after?
Steps of Functional Assessment What are the antecedents for the behavior - how does it get started? What contextual factors or conditions contribute to it? Does the child understand what is expected? Does the child have the skills to do what is expected? Does the child have the desire to change behaviors?
Steps of Functional Assessment Collect data using: Structured interviews or questionnaires with students, teachers, and others who work with the child; Interviews to learn how the child perceives the situation Observations of the behavior to record the antecedents, consequences, and situational factors; &/or Motivational scales and checklists.
Steps of Functional Assessment Develop a hypothesis that could explain the function of the behavior and predict when it is most and least likely to occur Use the who-whatwhere-when information to identify patterns
Make a plan that includes: Preventing: How will you change the situations that seem to be associated with the problem behavior?
Make a plan that includes: Teaching: What other behavior or skill will the child be taught that will meet his or her purpose in a more acceptable way?
Make a plan that includes: Reacting: How will adults react when the behavior occurs in a way that does not feed into the child s purpose, cause you greater upset or stress, or punish the child?
Use the plan What arrangements do you need to make to follow through with the plan? What is the timeline? Who has to be involved? How will you measure progress?
Use the plan Test the hypothesis by manipulating situational factors to reduce the likelihood that the behavior will occur Revise the hypothesis as needed
Reconsider the plan Has the plan been followed for preventing? Teaching? Reacting? Was the theory about the function of the behavior correct? What positive changes have occurred? What areas of the plan should be continued? What areas need changing?
Discipline Protections for Special Education Students Who is eligible for special education discipline protections? A student who has been identified & determined eligible A student who is in the process of evaluation prior to disciplinary action A student that the district knew or should have known was a child with a disability
District knowledge of disability The parent expressed concern in writing, or orally if the parent does not know how to write, has a disability that interferes with writing, or doesn t write English
District knowledge of disability The parent requested an evaluation to determine if their child had a disability
District knowledge of disability The behavior or the performance of the child demonstrates the need for special education and related services
District knowledge of disability The teacher or other personnel of the school expressed concern to the Supervisor of special education or other district personnel pursuant to district s child find procedures
District knowledge of disability The child is not entitled to these protections even if those actions occurred, if the district: Reviewed & determined evaluation unnecessary, or Conducted an evaluation & found the child ineligible, and Provided appropriate prior written notice to the parent and receipt of the notice is verified & documented
If the parent requests evaluation If, after the disciplinary action, the parent requests an evaluation: An expedited evaluation is completed Pending results, child remains in disciplinary setting determined by school, which could be without services
IDEA 2004 Protections For removal of up to 10 days, no right to manifestations determination, IEP/PBS review, or to educational services during exclusion UNLESS IEP explicitly requires
IDEA 2004 Protections IEP may prohibit suspension as a response to student behavior School personnel may consider any unique circumstances on a case-by-case basis
Students with Disabilities May be suspended for 10 consecutive or cumulative days May be suspended for more than 10 cumulative days if no pattern of exclusion is established
Pattern of Exclusion How long are the exclusions, individually and together? How close are the removals to each other?
IDEA 2004 > 10 Day Removal If student is determined to have committed offense that violates school code of conduct: IEP team conducts manifestation determination within the 1 st 10 days of removal
No manifestation determination is required if the student: Carried or possessed a gun or dangerous weapon Knowingly possessed or used illegal drugs Sold or solicited a controlled substance Inflicted serious bodily injury on another at school, on school premises, or at school function Exception
Manifestation Determination Meeting is held with district, parent, and relevant members of IEP team Team reviews all relevant information in student s file, IEP, teacher observations, any relevant information from parents
Manifestation Determination The behavior is a manifestation if: The conduct was caused by, or had a direct & substantial relationship to the child s disability, or The behavior was a direct result of the failure to implement the IEP
Manifestation Determination IDEA no longer requires consideration of whether: IEP, services & placement were appropriate & implemented Disability impaired the child s ability to understand the impact & consequences of behavior or to control the behavior
If Behavior is a manifestation The IEP shall: Conduct a functional behavior assessment & implement a positive behavior support plan, unless that has already been done If a PBS plan has been developed, review & modify it as necessary
If Behavior is a manifestation The student is returned to the current placement no later than the 11 th day following removal, unless the parent and team agree otherwise
If Behavior is NOT a manifestation The student may be disciplined, suspended or expelled the same as a student without a disability, except that the student must continue to receive FAPE for any removal of more than 10 days
If parent appeals decision If the parent appeals a decision to remove the student, or the decision that the behavior was NOT a manifestation of the student s disability, pendency placement is the disciplinary setting
Removal to IAES A student may be removed unilaterally by the school to an Interim Alternative Educational Setting for up to 45 calendar days if it is determined that the student: Carried or possessed a gun or dangerous weapon Knowingly possessed or sold illegal drugs Sold or solicited a controlled substance Inflicted serious bodily injury on another at school, on school premises, or at school function
Removal to IAES A hearing officer may remove a student to an IAES if s/he determines that maintaining the student in the current placement is substantially likely to result in injury
Removal to IAES The hearing officer no longer must consider: Appropriateness of current placement Whether the district made reasonable efforts to minimize the risk of harm
Removal to IAES The IEP team must conduct a FBA and implement a PBS plan, but only if the district had not already conducted an FBA prior to the behavior that resulted in the change of placement
Provision of FAPE Services must be provided that allow the student to continue to progress toward IEP goals and the general curriculum
Conflict Resolution Changes: Mediation Mediation must be available whether or not a due process hearing has been requested Mediation must be scheduled within 15 calendar days from receipt of the request & completed within 30 calendar days All discussions are confidential & may not be used in a due process hearing or civil proceeding
Conflict Resolution Changes: Mediation Agreements may not address special education for more than 1 year If parties reach agreement, must set forth their resolution, which is enforceable in state or federal court Either party may request enforcement of mediation agreement by NJ DOE OSEP within 90 days from when they believe that a component of the agreement is not implemented
Conflict Resolution: Impartial Hearing Complaints must be filed within 2 years from when parent knew or should have known about act or omission that is the subject of the complaint
The Resolution Session Parents who feel that their child s educational rights are being violated, or who disagree with the district s IEP, services, placement, or any other aspect of special education, must file a complaint with the school district (with a copy to the state).
The Resolution Session The parent must provide the district with information concerning: Child s name & address Contact information Area(s) of concern Facts of the situation Proposed solution
The Resolution Session The district must then decide to: File a response within 10 days of receipt of the parent s complaint, and schedule a resolution session; File a response within 10 days of receipt of the parent s complaint, and agree to let the due process hearing go forward without a resolution session; or Notify the parent and the state hearing officer within 15 days of receipt of the parent s complaint that they are challenging the sufficiency of the parent s complaint notice.
The Resolution Session If the district files a request for due process, the parent must send a written response addressing those issues within 10 days of receiving the complaint
The Resolution Session If the district has not sent a prior written notice to the parent regarding the subject of the complaint, the district must include in its response:
The Resolution Session An explanation of why the district proposed or refused to take the action raised in the complaint; A description of other options the IEP team considered and why those options were rejected;
The Resolution Session A description of each evaluation procedures, assessment, record or report the district used as the basis for the proposed or refused action; and A description of the factors that are relevant to the district s proposal or refusal.
Conducting the Session If the district decides to conduct a resolution session, the parent and the district meet to resolve the problem. The school district must convene the meeting with the parents and relevant members of the IEP team within 15 days of when the school district receives the parent's due process complaint.
Timeline to Resolve The school district has 30 days (15 days for discipline cases) from the time the complaint is filed to resolve the complaint to the satisfaction of the parents, after which a due process hearing can occur.
Attorneys at the Session If the parent does not bring an attorney to the resolution session, the district may not bring an attorney. (Parents may not be reimbursed for attorney s fees from a resolution session). An advocate is NOT an attorney.
Who attends the Session? IDEA does not specify who must attend the resolution session, except that someone who is authorized to enter into an agreement with the parent must attend.
Reaching Resolution If the district and the parent come to a resolution, their agreement is written and signed by both parties. Either side has the right to change their mind within 3 days after the agreement is signed.
Not Reaching Resolution If the district and the parent do not come to a resolution, the parent can proceed to the due process hearing. The impartial hearing officer must issue a decision within 45 days.
Waiver of Resolution Session The parent and the district may agree in writing that a resolution session would not be productive and to let the hearing proceed. At this point, the hearing would proceed and a decision should be reached within 45 days of the state s receipt of the parent s request for a hearing.
Alleging Insufficient Notice District formally declares insufficient notice within 15 days of receipt of complaint Hearing officer determines sufficiency within 5 days
If the notice is sufficient: District must respond to the complaint within 10 days of decision District must offer to hold a resolution session within 15 days of decision District has 30 days from decision to resolve the issue (15 days for discipline issue)
If the notice is insufficient: Parent must re-file the complaint with the district and the state The timeline starts all over!
Emergent Relief Limited to issues that: Involve a break in delivery of services Disciplinary action Placement pending outcome of due process proceedings Graduation or participation in graduation ceremonies
Must be filed within 90 calendar days of receipt of the hearing officer s decision Appeals
Final Thoughts Parents as partners Pre-referral interventions Early intervening services & response to intervention Equity in identification, evaluation, eligibility, placement, discipline, graduation & drop-out Research-based instruction & disciplinary practices Maximize progress in the general curriculum Highly qualified teachers Participation in state assessments Focus on outcomes