What to Do When…
Lessons for the New Administrator

ACSA 2014 Every Child Counts Symposium
January 15-17, 2014

Presented by:
Karen Gilyard, Partner
Jennifer Fain, Partner
Atkinson, Andelson, Loya, Ruud & Romo
12800 Center Court Drive, Suite 300
Cerritos, CA 90703
562-653-3200 • fax 562-653-3333
5075 Hopyard Road, Suite 210
Pleasanton, California 94588
Phone: (925) 227-9200  Fax (925) 227-9200

Cerritos

•

Fresno

•

Irvine

•

Pleasanton

•

Riverside

•

Sacrament o

•

San Diego

Cerritos Office
12800 Center Court Drive
Suite 300
Cerritos, California 90703

(562) 653-3200
(562) 653-3333
www.aalrr.com

Phone
Fax

KAREN E. GILYARD
Senior Partner
kgilyard@aalrr.com
Education Law

Experience
Karen Gilyard is a senior partner in the Cerritos office of Atkinson, Andelson, Loya, Ruud &
Romo. She represents California school districts and community college districts in
education law and labor relations. Ms. Gilyard provides interpretation and assessment of
issues arising under the Individuals with Disabilities Education Act, Section 504 of the
Rehabilitation Act of 1973, and Educational Employment Relations Act. She also handles
and/or litigates special education due process hearing matters, Section 504 complaints,
public sector unfair practice charges, and discrimination claims. Ms. Gilyard acts as district
negotiator and specializes in employment discrimination, student discipline, special
education, and condemnation actions.
Education
Ms. Gilyard received her Bachelor of Arts degree and Juris Doctor from the University of
California, Los Angeles.
Admission
1983, California and U.S. District Court, Central District of California; 1986, U.S. Court of
Appeals, Ninth Circuit
Memberships
Los Angeles County and American Bar Associations; State Bar of California
Publications and Speaking Engagements
Ms. Gilyard has presented workshops and conferences for school administrators, teachers
and staff, educational agencies, and school board members on such topics as collective
bargaining, Section 504, student discipline, and special education. She has co-authored
numerous summaries of recent statutes and court and administrative decisions relating to
education and labor issues. She is a frequent contributor to the firm’s school law
publications.

Cerritos

•

Fresno

•

Irvine

•

Pleasanton

•

Riverside

•

Sacramento

•

San Diego

Pleasanton Office
5075 Hopyard Road
Suite 210
Pleasanton, California 94588

(925) 227-9200
(925) 227-9202
www.aalrr.com

Phone
Fax

JENNIFER R. FAIN
Partner
jfain@aalrr.com
Education Law | Special Education
Section 504 | Student Issues

Experience
Jennifer Fain is a partner in the Pleasanton office of Atkinson, Andelson, Loya, Ruud &
Romo. Her practice focuses on representing educational agencies in the areas of special
education and anti-discrimination. Ms. Fain’s experience includes the successful
representation of school agencies at every stage of the litigation process, including
mediation sessions, administrative hearings, and federal court proceedings.
In addition to handling matters in litigation, Ms. Fain also works with clients proactively to
develop preventive practices to help avoid costly disputes, including reviewing current
policies, practices, and procedures for systemic issues and legal compliance. To further
assist clients in avoiding litigation, she offers in-service trainings for school personnel on a
variety of issues relating to special education and disability law. She also has spoken at
both state and national levels on special education legal issues.
Prior to joining Atkinson, Andelson, Loya, Ruud & Romo, Ms. Fain was a partner at The
Weatherly Law Firm where, for eleven years, she represented educational agencies across
the country in all facets of special education and anti-discrimination law.
Education
Ms. Fain received her Bachelor of Arts degree magna cum laude from Emory University,
and her Juris Doctor, cum laude from the University of Georgia.
Admissions
2000, Georgia
2005, California

Cerritos

•

Fresno

•

Irvine

•

Pleasanton

•

Riverside

•

Sacramento

•

San Diego

What to Do When…

What to Do When…
Lessons for the New
Administrator
2014 ACSA Conference

Presented By:
Karen E. Gilyard, Partner
Jennifer R. Fain, Partner

Cerritos • Fresno • Irvine • Pleasanton • Riverside • Sacramento • San Diego

The List
1.

Know and apply the Holland least restrictive environment (LRE)
standard

2.

Make formal written offer of placement at IEP meeting and in IEP

3.

Know how to conduct a manifestation determination review (MDR)

4.

What to do when parents refuse consent to all or part of the IEP

5.

What if parents revoke consent mid-year

6.

Who is a “parent” for purposes of making special education decisions

7.

All about independent educational evaluations (IEEs)

8.

Dealing with potentially dangerous special education students

9.

Requirements for a defensible transition plan

10. It’s is all in how you say it!

2

Number One:
What to do When….Know and Apply
the Holland LRE Test

3

© 2014 Atkinson, Andelson, Loya, Ruud & Romo

What to Do When…

How to make placements in the LRE
The LRE Requirement:

To the maximum extent appropriate, students with
disabilities should be educated with nondisabled
students; and
(20 U.S.C. §1412(a)(5) and 1413(a)(1); 34 C.F.R. § 300.114(a) and 104.34(a))

4

LRE Requirement, continued
Special classes, separate schooling, or other
removal of children with disabilities from the
regular educational environment occurs only if the
nature or severity of the disability is such that
education in regular classes with the use of
supplementary aids and services cannot be
achieved satisfactorily.
(20 U.S.C. §1412(a)(5) and 1413(a)(1); 34 C.F.R. § 300.114(a) and 104.34(a)).

5

Continuum of Placements
Instruction in regular classes
Special classes
Special schools
Home instruction
Instruction in hospitals and institutions
6


What to Do When…

The Holland Factors
1. Educational benefits of general education with
supplemental aids/services v. more restrictive setting.
2. Nonacademic benefits of the general education classroom
v. more restrictive setting.
3. Effect of the student’s presence on others in the general
education classroom.
4. Cost of providing instruction/services for student in the
general education classroom.
Sacramento City Unified Sch. Dist. v. Holland, 14 F.3d 1398 (9th Cir. 1994)).

7

Document Your Consideration of LRE

• If an IEP team determines that a student needs a more
restrictive placement, it should thoroughly document its
reasoning for that decision.
• The documentation should identify all of the factors the IEP
team considered and address the full range of the student's
skills and needs.
» Cobb County Sch. Dist. v. AV, 113 LRP 33979 (N.D. Ga.
08/20/13)

8

Number Two:
What to do When…You Need to Make
a Clear, Written Offer of Placement
IEP Meetings

9


What to Do When…

Making a Formal Written Offer of
Placement
• The IDEA requires written prior notice to parents when an
educational agency proposes, or refuses, to initiate or
change the educational placement of a disabled child.
• District must make a specific written offer of placement to
comply with IDEA's prior notice requirement.
• The placement offered should be described as specifically
as possible.
Union Sch. Dist. v. Smith, 15 F.3d 1519 (9th Cir. 1994)

10

Placement Defined

• California Code of Regulations, title 5 defines
placement as
– a unique combination of facilities, personnel,
location or equipment necessary to provide
instructional services to a Student with exceptional
needs.

11

Placement and Related Services

• Must adequately define placement:
– Facilities (District school, nonpublic school, RTC, etc.)
– Personnel (credentials, qualifications – not names)
– Type of program (SDC, RSP, etc.)
– ESY (duration, etc.)
• If year round, specify off-track services

12


What to Do When…

What is the purpose of the written offer
of placement?
 Creates a clear record that is intended to eliminate factual
disputes about when placements were offered, what
placements were offered, and what additional educational
assistance was offered to supplement a placement, if any.
 Provides parents with the opportunity to decide whether
the offer of placement is appropriate and whether to
accept the offer.

13

What to include in the written offer
• What specialized instruction—Hours/Minutes?
What? • What related services/DIS –Minutes? Frequency?

When?

Where?

Who?

• When will the services begin/end?

• Where will the program/services be implemented,
i.e., location?

• Who is responsible for implementing the
program/services?

14

Case in Point: Written Offer
Case Example: Student v. Poway
Issue: Did the District offer a FAPE when it offered an NPS placement
Facts:
 Student was placed in an SDC
 Due to his continued behavioral issues and his lack of progress on goals,
the District's educators felt that another environment would be more
beneficial to Student.
 IEP meeting held in February 2006 offered placement for Student at a NonPublic School, to include all the previously-offered related services and
instruction.
 District suggested three different schools, one located in Oceanside,
California, and two located near or in Mission Valley, California, with Student
to be transported daily by bus from his home.
 None of the schools were indicated on the IEP document and no information
was provided about the NPS programs except the names.
 Mother declined to sign authorization to send out applications.

15


What to Do When…

Case in Point: Written Offer, cont’d
OAH:
 One of the procedural prerequisites determined to be of paramount
importance by the Ninth Circuit is that an offer of FAPE to a student
be specific and be made in writing.
 This formal requirement [of a written offer of placement] has an
important purpose that is not merely technical, and therefore should
be enforced rigorously.
 NPS was not identified, except to provide parent with three names.
 NPS placements were not described or explained.
 Procedural denial of FAPE because violated Union v. Smith,
impeding the parents right to participate in the decision-making
process

16

Number Three:
What to do When…It’s Time to Conduct
a Manifestation Determination Review

17

Manifestation Determination Reviews
(MDRs): When to do them?
• Must be held within 10 school days after the decision to
impose a removal that constitutes a change of placement
• Must include relevant IEP team members and other
qualified personnel in a meeting.
34 CFR 300.530(e)(1)

18


What to Do When…

What to Consider in a MDR
• Federal law requires the team consider all relevant
information including:
– Evaluation and diagnostic results;
– Information supplied by the parents;
– Any teacher observations of the child; and
– The child’s IEP and placement.
– Health records.
– Discipline records.

19

Factors to Consider in a MDR

• MD Tests: IEP team must consider:
– If the conduct in question was caused by, or had a direct and
substantial relationship to, the child’s disability; or
• An examination of the disability

– If the conduct in question was the direct result of the LEA’s failure to
implement the IEP
• An examination of the LEA’s actions and the effect on disability

– The conduct must be determined to be a manifestation
of the student’s disability if either of the above applies.
– Make sure you examine and answer both questions.
20

Manifestation Determinations, generally
THE DETERMINATION - • Individualized and based on a case-by-case analysis
• Not based on categorical labels
• Not based on broad classifications or generalizations of a
disability -- blanket decisions based on characteristics
generally exhibited by other students with the same
disability are prohibited
• Not a simple analysis of right or wrong -- must determine
whether the disability, as it affects the particular student, is
related to that student’s specific misconduct.

21


What to Do When…

Manifestation Determination
THE DETERMINATION - • An important consideration would be how severe is the disability for
that student. Elk Grove USD, 16 EHLR 622 (SEA CA 1989).
• The student’s IEP team should evaluate whether the student has any
previously unidentified disabilities that could have caused the
wrongdoing. Modesto City Schools, 21 IDELR 685 (SEA CA 1994).
• A direct causal relationship between the behavior and the disability
must be established.
• When several factors contribute to the student's misbehavior, but his or
her disability is one of the contributing factors, the relationship between
his or her disability and misconduct is established.

22

MDR: If It’s Broken, Fix it
• If the LEA, parents, and other members of the IEP
team, determine that the child’s behavior was the
direct result of the LEA’s failure to implement the IEP,
then the LEA must take immediate steps to remedy
deficiencies.

23

If the behavior is a manifestation…
• If the IEP team determines that the child’s behavior
was a manifestation of his/her disability, the student
may not be disciplined AND
• The IEP team MUST:
– (i) conduct a functional behavior assessment (FBA) and
implement a behavior intervention plan (BIP), OR

24


What to Do When…

If the behavior is a manifestation, cont’d

– (ii) if child has a BIP, review the BIP and modify it, as
necessary, to address the behavior, and
– (iii) return the child to the placement from which the child
was removed UNLESS
• parents and the LEA agree to a change in placement as part of
the modification of the BIP, or
• if the student has been placed in a interim alternative education
setting (IAES) under special circumstances (34 CFR 300.530(g))

25

If the behavior is not a manifestation

• If the IEP Team finds that the student’s behavior was not a
manifestation of the student’s disability, the student can be
disciplined like a general education student.

26

CASE-IN-POINT: MD Test
Manifestation Determination Invalid Because District Failed to Provide
Services.
• 11th grade Student qualified for special education and related
counseling services because of a specific learning disability and an
auditory processing disorder.
• Student periodically displayed hostility, irritability, antisocial behavior,
aggressiveness, impulsiveness, and anxiety.
• Student’s IEP team provided a BSP to address behavior.
• Despite difficulties raised by her disability, student earned As and Bs on
report cards.
• Student was to receive counseling according to her IEP but did not
receive such counseling.
27


What to Do When…

• In resource class, student answered her cell phone.
• The teacher demanded the phone, student refused, and left the
classroom.
• The next day, Student discussed the incident with the dean of
discipline, but as student left the dean’s office, she yelled “I hate this
f___ing school.”
• The dean suspended Student for violating the code of student conduct.
• The student was later recommended for expulsion.
• At a pre-expulsion IEP meeting, the District determined that Student’s
conduct was not a manifestation of her disability.
• Over the parents’ objections, Student was moved from her current
placement and placed in an alternative site.

28

• OAH found
– The District failed to provide counseling services as required by
Student’s IEP. Without the parents’ knowledge, Student received
only one counseling session with the dean of discipline who is not a
trained counselor.
– Because the District failed to provide Student with counseling
services for anger management to address her behavior problems
as required by her IEP, Student was granted relief from the
manifestation determination.
(Student v. Manteca Unified School Dist., (May 11, 2006) OAH Case No. 2006030182.)

29

CASE-IN-POINT: MD Test
• Student with ADHD qualified under OHI.
• Student’s unique needs relating to his ADHD were distraction, off-task
behavior, impulsivity in class consisting of talking and acting-out, and
difficulty in working independently.
• Student’s ADHD symptoms were described as severe.
• Student made a “dry ice bomb” which he hid in bathroom stall, which
exploded and injured a teacher when the cap hit the teacher upon
explosion.
• District held a MDR, and found that student behavior was not a
manifestation of his disability because he methodically planned it.
• Parents disagreed with the determination and filed for an expedited
hearing.
30


What to Do When…

The issue at hearing was:
 Was Student’s conduct on February 1, 2010, which led to his
expulsion, caused by, or determined to have a direct and substantial
relationship to his ADHD, and therefore a manifestation of his
disabilities?
At hearing, Parent contended that student’s behavior was impulsive
and direct manifestation of his disability
School psychologist credibly testified that student’s conduct involved a
chain of behaviors that do not support a finding of impulsivity:
1) Student researched how to obtain dry ice,
2) procured the dry ice,
3) chose a vacant place to construct the bomb – the bathroom,
 4) constructed the bomb, and
 5) chose a location to hid the bomb- a bathroom stall, while he
waited for detonation

31


• OAH found that:
– IEP team appropriately determined the student’s behavior was not a
manifestation and that there was no failure to implement IEP, and
– evidence showed student’s behavior was not substantially or directly
related to his ADHD, as student constructed and planned the hiding
of the dry ice bomb, and IEP team considered all relevant
information before concluding the behavior was not a manifestation
of student’s disability.
(Parent v. Poway Unified School District, (July 27, 2010) OAH Case No. 2010060622)

32

Number Four:
What to do When… Parent Refuses
Consent to All or Part of the IEP

33


What to Do When…

Consent Provisions
•

It is important to understand the consent provision in the
law for:
1) Initial assessment
2) Initial provision of special education services
3) For subsequent IEPs, reassessments, and changes in
placement

34

Consent Provisions
• Parental consent is not required
– before reviewing existing data as part of an assessment or
reassessment, or
– before administering a test or other assessment that is administered
to all children, unless before administration of that test or
assessment, consent is required of the parents of all the children.
– the screening of a student pupil by a teacher or specialist to
determine appropriate instructional strategies for curriculum
implementation

35

Consent Provisions
Rules of Consent for Initial Provision of Services:
• (1) Must obtain informed consent from the parent of the
child before the initial provision of special education and
related services to the child.
• (2) Must make reasonable efforts to obtain informed
consent from the parent for the initial provision of special
education and related services to the child.
– AALRR Tip: Document your efforts to gain consent

36


What to Do When…

Consent Provisions
Rules of Consent for Initial
Provision of Services (cont.):
• If the parent of a child fails to
respond to a request for, or
refuses to consent to, the initial
provision of special education and
related services, the public
agency -– (i) May not file for due process to
force services
– (ii) Not be considered to be in
violation of the requirement to
make FAPE available to the child
– (iii) not required to convene an
IEP Team meeting or develop an
IEP

37

Consent Provisions
Rules of Consent for Subsequent IEPs, Reassessments
and Changes in Placement
• Informed parental consent is required
• For a reassessment
– Consent need not be obtained if the district can demonstrate that it
took "reasonable measures to obtain such consent and the child's
parent failed to respond." 20 USC 1414(c)(3); 34 CFR 300.300(c)(2)
– Must document efforts to obtain consent for reassessment
• detailed records of phone calls made, attempted and result of calls
• records of home and work visits,
• copies of correspondence sent to parent

38

Consent Provisions
• Who Holds the Power?
– Parent includes
• A biological or adoptive parent of a child.
• A foster parent
• A guardian
• A person acting in place of a parent
• A surrogate parent
Cal. Educ. Code § 56028(a)

39


What to Do When…

Requirement at Impasse
• If the parent of the child consents in writing to the receipt of
special education and related services for the child but
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.
Cal. Ed. Code 56346(e)

40

• Requirement to file for a due process hearing:
– if the public agency determines that the proposed special education
program component to which the parent does not consent is
necessary to provide a FAPE, a due process hearing shall be
initiated
• If a due process hearing is held, the hearing decision shall be the final
administrative determination and shall be binding upon the parties.
• While pending, the child shall remain in his or her current placement,
unless the parent and the public agency agree otherwise.

41

• The 56346(f) Requirement:
The plain meaning of the term "shall" in Education Code section
56346, subdivision . . . (f), is that the requirement is mandatory: the
school district must file a request for due process hearing to resolve
its impasse with a parent if it cannot provide a student a FAPE under
the outstanding IEP. (See, e.g., Camptonville Union Elementary School District and Yuba
County Special Education Local Plan Area 109 LRP 23255 (March 18, 2009)

– OAH decisions have uniformly supported this interpretation. (See, e.g.,
San Diego Unified School Dist. v. Student, OAH Case No. N2007060523 (Sept. 4, 2007); Ocean
View School Dist., et al., v. Student, OAH Case No. N2007050694 (Aug. 22, 2007); Manhattan
Beach Unified School Dist. v. Student, OAH Case No. N2007030412 (July 31, 2007); Chula Vista
Elementary School Dist. v. Student, OAH Case No. N2007040557 (July 26, 2007); Student v. Los
Angeles Unified School Dist., OAH Case No. N2006020813 (July 11, 2007); see also, Murphy v.
Timberlane Regional School Dist. (1st Cir. 1994) 22 F.3d 1186, 1195-1196.)
42


What to Do When…

Number Five:
What to do When…Parent Revokes
Consent Mid-Year to Services Already
Consented to?

43

Informed Parental Consent
• An LEA that is responsible for making a FAPE
and related services available to a child with a
disability under this part shall seek to obtain
informed consent from the parent of the child
before providing special education and related
services to the child.

44

Revocation of Consent After Consent
was Previously Given
Here’s the Scenario:
Parent revokes consent to a service
mid-year, after parent had previously
provided consent.
What should you do?...

45


What to Do When…

Revocation is Not Retroactive
• Once the service has been consented to and implemented,
the District is not obligated to honor a request to cease
providing a specific service, retroactively, merely because it
has been requested.
• How to respond to parent’s request?
– Convene an IEP team meeting;
– Discuss parent’s concern about the service;
– Remember to assess prior to changing placement/removing services;
– The proper way to say “no” to the parent’s request is to send a Prior Written
Notice.

46

Revocation of Consent After Consent
was Previously Given
• If the parent revokes consent after implementation of the
IEP has begun, then the district should continue to
implement the IEP until the district and parent otherwise
agree to a different appropriate placement or the dispute is
resolved through the special education due process
procedures.

47

Partial Revocation of Consent and
Stay Put
• In order to stop continued implementation of the service,
parent may use the due process procedures of the
regulations to cease a service that the parent believes is
not appropriate for their child.
• Meanwhile, the last agreed upon and implemented IEP
remains stay-put.

48


What to Do When…

Number Six:
What to do When… It’s not clear who
is a “Parent” for Purposes of Making
Special Education Decisions

49

Custody & Educational Rights

• Where divorced parents have joint legal custody of a
child, both parents share coequal rights and
responsibilities in making general educational decisions
on the child’s behalf, absent a court order or agreement
to the contrary.
(CA Fam. Code § 3003)

• This coequal decision-making authority extends to
decisions about special education.

50

Definition of “Parent”

• Under Education Code section 56028, a biological or
adoptive parent is presumed to be a “parent” for
purposes of exercising the rights accorded to parents in
connection with their child’s special education, including
the right to provide or withhold consent to the
implementation of an IEP, absent a judicial decree or
order to the contrary.
Westside Union School District, 35 IDELR 88, 101 LRP 309 (CA SEA 2001)
(each parent has the right to request a due process hearing)

51


What to Do When…

Definition of “Parent”, CONTINUED
• CA special education law also recognizes the following
additional ways to meet the definition of “parent”:
– A guardian generally authorized to act as the child’s parent, or
authorized to make educational decisions for the child, including a
responsible adult appointed for the child per Welfare & Inst. Code
sections 361 and 726.
– An individual acting in the place of a biological or adoptive parent,
including a grandparent, stepparent, or other relative, with whom the
child lives, or an individual who is legally responsible for the child’s
welfare.
– A surrogate parent who has been appointed under Govt. Code
7579.5 or 7579.6, and pursuant to IDEA’s provisions on appointment
of surrogate parents.
(continued)

Definition of “Parent”, CONTINUED
• “Parent” further defined in Education Code:
– When more than one party meets the definitions of “parent,” the
biological or adoptive parent who attempts to assert educational
rights for a child shall be presumed to be the “parent” for purposes of
special education law unless that biological or adoptive parent does
not have legal authority to make such educational decisions.
– If a court order identifies a particular person or persons to be the
educational decision-making “parent,” that person or persons shall
be determined the “parent” for purposes of Govt. Code sections
7570, et seq., and Welfare & Inst. Code sections 361 and 726.
(Ed. Code, § 56028(b)(1) and (2))

Definition of “Parent”: Foster Parents
• IDEA 2004 added “foster parent” under definition of
“parent” unless state law, regulations, or contractual
obligations otherwise prevent a foster parent from acting as
a parent.
(34 C.F.R. § 300.20(a)(2))

• Effective Oct. 10, 2007, the CA legislature re-defined
“parent” – for special education purposes – to include a
“foster parent” if the authority of the biological or adoptive
parents to make educational decisions on the child’s behalf
has been limited by court order.
(Ed. Code, § 56028; 34 CFR § 300.30(b)(1) or (2))


What to Do When…

Parental Consent Example

• “If the biological parent of the child refuses consent for an
initial evaluation of the child, and the parental rights of the
biological parent have not been terminated in accordance
with State law, or a court has not designated a foster parent
to make educational decisions for the child in accordance
with State law, a foster parent may not provide consent for
an initial evaluation.”
(Questions and Answers on Individualized Education Programs (IEPs),
Evaluations, and Reevaluations, 111 LRP 63322 (OSERS 9/1/11); see
also 34 CFR § 300.30(b)(1).)

Definition of “Surrogate Parent”
•

IDEA requires the appointment of a “surrogate parent” when:
1. No parent can be identified;
2. The public agency, after reasonable efforts, cannot locate a parent;
3. The child is a ward of the State under State law; or
4. The child is an unaccompanied homeless youth as defined in the
McKinney-Vento Homeless Assistance Act.

•

LEAs must have a method for:
•

Determining whether a child needs a surrogate parent; and

•

For assigning a surrogate parent.
(34 CFR § 300.519(a), (b))

Number Seven:
What to do When… You Receive an
IEE Request?

57


What to Do When…

Independent Educational Evaluations

Parents of a student with a disability have the right to obtain
an independent educational evaluation (“IEE”) at public
expense if they disagree with an evaluation completed by the
District.
(Title 34 C.F.R. 300.502 (b).)

58

Independent Educational Evaluations,
Cont…
• “IEE” means an evaluation conducted by a qualified
examiner who is not employed by the District.
• “Public expense” means that the District either pays the
cost or ensures that the evaluation is provided at no cost to
the parent.
(Title 34 C.F.R. 300.502)

59

IEE Options
1. The District may offer to conduct another
evaluation of its own with parent consent.
 Using the same or another assessor within the District
 Parent must agree in writing to postpone the request for
the IEE

2. File a request for due process
3. Arrange for the IEE at public expense

60


What to Do When…

IEE Options, Cont…
4. If the parent request the District fund an IEE which has
already been obtained consider the following:
 Filing a request for due process;
 Whether the assessment meets the District requirements; and
 An agreement to obtain an alternative independent assessor

Note: The District must not unreasonably delay taking action
to the parent request, and must provide a copy of the parent
rights and procedural safeguards.

61

IEE Options, Cont…
Regardless of which Option the District chooses
to follow, it must respond to Parent’s request for
an IEE with a prior written notice, pursuant to the
requirements of Title 34 C.F.R. 300.503
(

62

Independent Educational Evaluations,
Cont…
• If the District includes
observations in conducting its
own assessments, it must
allow comparable time to the
independent evaluator –
consistent with District
visitation policies.
(Title 34 C.F.R. 300.502)

63


What to Do When…

IEE Parent Rights

• The District may ask why the parent objects to the District
conducted assessment, but no explanation is required, nor
can the District delay either providing the requested
assessment at public expense or filing a request for due
process as a result.
• Parent is only entitled to one IEE for each District
conducted assessment.
(34 C.F.R. 300.502)

64

IEE District Criteria

•

If the parents obtain an IEE at public expense,
or shares an evaluation obtained at their own
expense, the results of the evaluation:
–
–

Must be considered, if they meet agency criteria, in
any decision concerning FAPE; and
May be presented by any party as evidence at a due
process hearing.
(34 C.F.R. 300.502)

65

Number Eight:
What to do When… Options for
Dealing with Potentially Dangerous
Special Education Students

66


What to Do When…

Interim Alternative Educational Setting
– “Big 3”: School district may unilaterally remove a student
to an IAES for not more than 45 school days without
regard to whether the behavior is determined to be a
manifestation of the child’s disability if student:
• Carries a weapon or possesses a weapon at school,
on school premises, or to/at a school function;
• Knowingly possesses or uses illegal drugs or
sells/solicits the sale of a controlled substance while at
school, on school premises, or at school function; or
• Has inflicted serious bodily injury to another at school,
on school premises, or at a school function
67

Dangerous Weapon
• DEFINITION:
• The term “dangerous weapon” means a weapon,
device, instrument, material, or substance,
animate or inanimate, that is used for, or is
readily capable of, causing death or serious
bodily injury, except that such term does not
include a pocket knife with a blade of less than
2.5 inches in length.

68

Serious Bodily Injury
• DEFINITION:
• Bodily injury that involves (1) a substantial risk of
death; (2) extreme physical pain; (3) protracted
and obvious disfigurement; or (4) protracted loss
or impairment of the function of a bodily
member, organ, or mental faculty.

69


What to Do When…

Multiple 45-Day Removals

• A district cannot extend or renew a 45-day placement in an
IAES for drugs/weapons in connection with the same
offense. (Letter to Bachman, 29 IDELR 1092 (OSEP 1997).)
• However, if the student engages in separate instances of
misconduct or dangerous behavior, he may be placed in
IAES for each occasion – adding up to more than one 45day IAES in a given school year. (64 Fed. Reg. 12,620 (1999).)

70

Substantially Likely to Result in Injury

• Districts cannot unilaterally place a student in an IAES just
because it feels that particular student poses a safety risk.
• But, the district can file a due process hearing request to
change placement if it feels that maintaining the student's
current placement is substantially likely to result in injury to
student or others.
(34 CFR 300.532(a).)

71


• An expedited hearing must occur within 20 school days of
the date the complaint requesting the hearing is filed. The
SEA or LEA is responsible for arraigning this expedited
(34 CFR 300.532(c)(2).)
hearing.
• Expedited hearings on disciplinary matters are subject to all
of the IDEA’s procedural requirements, including the duty to
offer/hold a resolution session.
(Letter to Gerl, 51 IDELR 166 (OSEP 2008).)

72


What to Do When…

• If the IHO determines that the student’s current placement
is substantially likely to result in injury to self or others, the
IHO can order that the student be placed in an IAES for up
to 45 days. (34 CFR 300.532(b)(2)(ii).)
• The district can repeat this process if it feels that returning
the student to the original placement is substantially likely
to result in injury to self or others. (34 CFR 300.532(b)(3).)
• Case Example: Court found that 13 year-old’s violent
behavior in the IAES warranted a 45-day extension. (Westran R-I
Sch. Dist., 51 IDELR 290 (SEA MO 2008).)

73

• Whether the placement is “substantially likely to result in
injury” depends on the facts. In making factual
determinations, the IHO will consider:
– Nature of conduct
– Extent of conduct
– Frequency of conduct

• Case Example: IHO approved IAES placement for 1st
grader whose problem behaviors included pushing,
tripping, punching, threatening classmates with scissors
and pencils, and throwing furniture.
(Braintree Pub. Schs., 5 ECLPR 119 SEA MA 2008).

74

• Verbal threats without injury are generally not sufficient to
create a substantial likelihood of injury.
• Case Examples:
– Student saying he wanted the assistant principal “six feet under” was
not enough. (Cabot Sch. Dist., 27 IDELR 304 (SEA AR 1997).)
– Student who threatened mayhem, but had not done anything more
than throw and violently push furniture. (Clinton County R-III Sch. Dist. v. C.J.K., 23
IDELR 306 (W.D. Mo. 1995).)

– Student who used foul and threatening language also punched at his
teacher, and threw a box of Jell-O was not enough when student
didn’t injury anyone and his behavior changed after medication was
modified. (Scranton Sch. Dist., 29 IDELR 133 (SEA PA 1998).)

75


What to Do When…

Honig Injunctions/TROs

• School officials can in some cases, ask the courts to modify
the placement of a dangerous child. The district can seek a
Honig injunction to temporarily remove a dangerous
student from his current placement. (Honig v. Doe, 559 IDELR
231 (U.S. 1988).)

• Case Example: The district obtained a TRO to remove a 14
year-old boy who yelled, cursed, destroyed property,
fought, and generally acted out of control.
(Gadsden City Bd. of Educ. v. B.P., 28 IDELR 166 (N.D. Ala. 1998).)

76

Honig Injunctions/TROs
• A temporary restraining order (TRO) may be issued for a
short-term. A TRO usually lasts while a motion for
preliminary injunction is being decided, and the court
decides whether to drop the order or to issue a preliminary
injunction.
• TRO standard, Plaintiff must prove:
• Likelihood of success on the merits
• Extent to which the plaintiff is being irreparably harmed by the
defendant's conduct
• Extent to which the defendant will suffer irreparable harm if the TRO
issues
• Public interest

77

Number Nine:
What to do When… Requirements for
Defensible Transition Plans

78


What to Do When…

EFFECTIVE PLANNING
• Beginning no later than the IEP in effect at the
student’s 16th birthday, and updated annually
thereafter, an IEP must include:
– A statement of needed transition services [56043];
– Appropriate measurable postsecondary goals based
upon age appropriate transition assessments related to
training, education, employment and independent living
skills; and
– The transition services needed to assist the child in
reaching those goals.
(34 CFR 300.320 (b); Cal. Ed. 56345).)

79

EFFECTIVE PLANNING
CONT’D . . .
– In the case of an ITP, the LEA must invite the student to
attend the IEP meeting if the purpose of the meeting is
the consideration of the needed transition services.
• If the student does not attend the IEP meeting, the
LEA must take steps to ensure that the student’s
preferences and interests are considered.
(Cal. Ed. Code section 56341.)

80

EFFECTIVE TRANSITION
PLANNING
• Transition Planning is a 4-step process:
– Identify the student’s postsecondary goals and present
levels of performance through age appropriate
assessments;
– Develop annual goals to support the postsecondary
goals;
– Identify and provide the necessary transition services;
– Complete the student’s Summary of Performance

81


What to Do When…

POSTSECONDARY GOALS
• What are effective post secondary goals?
– Appropriate measurable post-secondary goals based on
age appropriate assessments related to training,
education, employment, and where appropriate,
independent living skills. (Cal. Ed. Code 56345.)
• Postsecondary goals are based on what the student plans to do
upon school exit.

– Each student should have at least 2 and possibly 3
postsecondary goals:
• Education and/or training, employment; and
• And, where appropriate independent living.
82

POSTSECONDARY GOALS
CONT’D . . .
• If the IEP team writes postsecondary goals and the student
does not achieve those goals upon school exit, is the LEA
going to be held responsible?
– Not necessarily. The requirement is that LEA’s prepare the student
to achieve the goals and provide the services necessary to assist
the child in achieving his/her postsecondary goals.

83

DETERMINATION OF PRESENT
LEVELS OF PERFORMANCE
• Along with the determination of postsecondary goals, the
student’s present levels of performance information will be
gathered from various sources, including other components
of the student’s file and age appropriate assessments.

84


What to Do When…

AGE APPROPRIATE
TRANSITION ASSESSMENTS
• What are age appropriate assessments?
• Academic assessments;
• Career exploration surveys and questionnaires; and
• Employment interest surveys.
• Other sources.

85

AGE APPROPRIATE TRANSITION
ASSESSMENTS
CONT’D . . .
• Transition assessment is an ongoing process of
collecting data on the student’s needs, preferences
and interests as they relate to the demands of
current and future employment, education, living,
and personal and social environments.
• Assessment data serves as the common thread in
the transition process for defining goals and
services to be included in the student’s IEP.

86

AGE APPROPRIATE TRANSITION
ASSESSMENTS, CONT’D . . .
• What does the age appropriate assessment data
provide?
– Assists the student and IEP team in identifying interests
and preferences;
– Determine academic and functioning skills and match
those skills to postsecondary goals;
– Determining appropriate accommodations and supports
necessary to help the student succeed; and
– Determine appropriate instruction, activities and services
that will assist the student in achieving post school goals.
87


What to Do When…

TRANSITION PLANNING OUTCOMEORIENTED
It is important to remember that transition
planning is an outcome-oriented process
that promotes movement from school to
postsecondary activities.

88

OUTCOMES TO CONSIDER
• Postsecondary education
– Admission to college
– Earning a college degree
– Admission/completion of trade
school
– Earning a GED
– Adult education
• Vocational Training
– Obtaining employment
– Maintaining employment
– Volunteer positions
• Integrated Employment, including
supported employment
– Obtaining a social security number
– Requirements for appropriate
support services
– Obtaining employment
– Maintaining employment

• Independent living:
– Selecting a lifestyle and living
arrangements;
– Money management;
– Health care;
– Mobility (travel, training, driver’s
license); and
– Nutrition, cooking/cleaning.

• Community participation:
– Obtaining necessary support
services; and
– Joining community organizations.

89

APPROPRIATE ANNUAL GOALS

• Does the student know what his/her postsecondary
goals are for education or training?
– If not, annual goals to support self awareness and career
exploration might be appropriate; and
– If yes, annual goals to assist the student in obtaining
additional information related to his/her postsecondary
education and training, i.e., information related to
entrance qualifications and financial aide, if appropriate.

90


What to Do When…

CONT’D . . .
• Does the student know what his/her postsecondary goals
are for employment?
– If not, again, annual goals to support self awareness and career
exploration might be appropriate.
– If so, annual goals related to the job qualifications, salary scales,
promotional opportunities, required education.

91

CONT’D . . .
• Does the student know what their postsecondary options
are for independent living?
– Annual goals to support daily living skills, exploration about housing
options and community resources might be appropriate.

• Does the student need connections to postsecondary adult
service providers?
– Annual goals to establish those connections may be appropriate.

92

TRANSITION SERVICES

• Both the IDEA and the Cal. Ed. Code require “transition
services,” including courses of study, to assist the student
in reaching his/her postsecondary goals.
– What are courses of study?
– What are transition services?

93


What to Do When…

TRANSITION SERVICES
CONT’D . . .
• What are Courses of study?
– Multi-year description of coursework necessary to
achieve the student’s desired postsecondary goals.
– For student working on graduating from high school, a
copy of their high school transcripts that list the courses
taken as well as the courses necessary to achieve the
goal.
– For student working toward a certificate of completion, a
listing of the academic and functional courses necessary
to complete the course of study.
94

TRANSITION SERVICES
CONT’D . . .
• The term transition services means a coordinated set of
activities that:
– Includes services developed within an outcome-oriented process
that promote movement from school to post-school activities;
– Is based on the individual needs taking into account preferences and
interests; and
– Includes instruction, related services, community involvement,
employment, adult living, and where appropriate, daily living skills.

95

TRANSITION SERVICES
CONT’D . . .
• Transition Services may include:
–
–
–
–

Instruction on safety issues, public transportation and cooking;
Self-advocacy instruction;
Assistance completing job applications and balancing a checkbook;
Monthly/quarterly meetings with the school counselor to support the
goal of graduating high school; and

– Counseling services to address anger management that could arise
in workplace environments, safety issues, self-advocacy, social skills
development.

96


What to Do When…

TRANSITION SERVICES
CONT’D . . .
• Transition Services Cont’d . .
– Job Shadowing opportunities;
– Trips to college for tours of facilities and mobility instruction;
– Trips utilizing public transportation;
– Part-time employment services through work-ability programs; and
– Assistance obtaining a social security number or driver’s license.

97

Number Ten:
What to do When:…You Need to Say
“No” to a Parent—
It’s All in the Way You Say It

98

It’s All in the Way You Say It:
Choosing Your Words Wisely
Some Examples:
To Say or Not to Say,
That is the Question

99


What to Do When…

Say or Not Say?
“We don’t have staff available to provide individual speech
services, so we will need to provide group speech services
to [Student].”

100

• DON’T SAY:
We don’t have staff available to provide individual speech
services right now, so we will need to provide group speech
services to [Student].”
• DO SAY:
– “After reviewing the goals, we recommend that your child
receive two thirty-minute group sessions of speech
language services.”
Caution: The services offered must be based on the
student’s needs, not staff availability/convenience.
101

Say or Not Say?
“We understand that you are requesting a 1:1 aide for
[Student], but we do not believe [Student] requires an aide
at this time.

102


What to Do When…

• DO SAY:
“We understand that you are requesting a 1:1 aide for
[Student], but we do not believe [Student] requires an aide
at this time.”
• BUT….ALSO SAY:
– Explain why Student does not require a 1:1 aide
– Document this in IEP notes
– Prepare a Prior Written Notice if all elements for a PWN have not
been covered in the IEP document and notes

103

Say or Not Say?

“We do not provide ESY services to resource students.”

104


• DON’T SAY:
– “We do not provide ESY services to resource students.”
• DO SAY:
– “You child does not require ESY services. During
breaks, he does not demonstrate regression that cannot
be recouped in a reasonable time period after coming
back to school.”

105


What to Do When…

Say or Not Say?

“We received your request for a non-public school
placement for your daughter, and we are taking it under
advisement.”

106

• DO SAY:
• “We received your request for a non-public school
placement for your daughter, and we are taking it under
advisement.”
• BUT DON’T FORGET:
– To respond to the request. Do not let it go unanswered!
– Consider convening an IEP team meeting to discuss parent’s
concerns and if any revisions to your IEP/offer of FAPE are needed
– Prepare a Prior Written Notice

107

Remember that:
 What you say should be student centered.
 Placement and/or services offered are not
based on staff schedules or District programs.
 There are no generalizations in the IEP
process.
 Placement and/or services offered are based
on the student’s individual needs.
108


What to Do When…

Strategies When Disagreement Arises:
 Prepare a Prior Written Notice
 Consider Alternative Dispute Resolution
 Mediation-Only
 Due Process Hearing Request, if necessary.

109

Question
Answer

Session

Thank You
For questions or comments,
please contact:
Karen Gilyard at kgilyard@aalrr.com or
Jennifer Fain at jfain@aalrr.com


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