Basics of Education Advocacy 2 Special Education Conflict

Basics of Education Advocacy 2: Special Education Conflict Resolution Education Law Pro Bono Project February 16, 2017 1

Agenda • About LAF’s work • Informal Special Education Conflict Resolution • IEP Meetings • Formal Special Education Conflict Resolution • Questions 2

Presenters Kate Gladson LAF Staff Attorney Caroline Shurig LAF Equal Justice Works Fellow Facilitator: Calli Burnett, LAF VISTA Attorney 3

About LAF is the largest provider of free civil legal services in Cook County Immigrant & Workers’ Rights Children & Families Public Benefits Consumer Education Law • DCFS Education Project • Pro Bono Education Project • Unmet Mental Health Needs Project • Options/Alternative Schools Project Cases include: Housing • • • Special Education Discipline Residency Homeless Students’ Rights School Records Requests Bullying/Safety Issues 3

LAF’s Education Law Team Kate Shank Director, Volunteer Support Unit (Heads All Pro Bono Projects) Rich Cozzola Director, Children & Families Practice Group Calli Burnett, VISTA Attorney Education Law Pro Bono Project Caroline Shurig, EJW Fellow Unmet Mental Health Needs Ashley Fretthold Supervisory Attorney, Education Law Jamie Schulte, Skadden Fellow Options/Alt. Schools Project Zoe Lang, Paralegal Education Law Kate Gladson, Staff Attorney DCFS Ward Project Steve Pick, Staff Attorney DCFS Ward Project 5

Working with LAF The Education Law Pro Bono Project now operates as a monthly clinic where Pro Bono Panel attorneys conduct intake, give legal advice, and provide brief services when applicable to clients with education law issues. • • Pro Bono Panel members will volunteer at two or more clinics/year At each clinic attorneys will: conduct intake appointments give legal advice review documents identify brief services needed • Following each clinic attorneys (one their own time) will complete any brief services the case requires • In the rare circumstance extended representation is required in a case, the pro bono attorney can elect to provide long-term representation as either the lead counsel or co-counsel with LAF When accepting extended representation in a case, pro bono attorneys must: 1. Maintain a client file; 2. Consult and update LAF re. case developments, dates, and decisions; 3. Log their pro bono hours on LAF’s website; and 4. See the case to resolution to the best of their ability. 6

Informal Special Education Conflict Resolution 7

Informal Conflict Resolution: Overview • Records Request • Demand letter • Parent’s Right to Observe • IEP: Requesting a CSE • IEP: Requesting a meeting 8

Records Request • Almost always a first step in cases • Make written, request that is signed and dated • Send to office of school district superintendent or office of student records for school district • CC’ school principal and/or school district’s attorney if known • For CPS- send via email to studentrecords@cps. edu • Include: • Name of student • Name of school district and school student currently attends and any known schools the student previously attended • Legal basis for request (i. e. “This request is made pursuant to the Family Educational Rights and Privacy Act (“FERPA”), 20 U. S. C. § 1232 g, and the Illinois School Student Records Act (“ISSRA”), 105 ILCS 10/1 et seq. ”) • Highlight specific records sought, if any • Means of delivery, (i. e. US mail and/or email) • Time frame (i. e. “We look forward to receiving these documents within a reasonable amount of time pursuant to FERPA, but within the next fifteen days, pursuant to ISSRA. ”) • If sending on behalf of client, attach signed Consent for Release of Information (if student is over 12, you need them to sign the Release as well) 9

Records Request • What should you expect to receive from the school? • Enrollment information (disenrollment and transfer records) • Special education documents (IEPs, 504 plans, IEP report cards, screenings, evaluations, test-materials and protocols, domain grids, requests/referrals for special education evaluations, service provider logs, event logs, MDRs ) • Achievement data (Standardized test and/or benchmark data, report cards, transcripts, portfolios of student work, Rt. I and/or School-based Problem solving data) • Behavior records (daily attendance, discipline records, suspension notices, behavioral data, anecdotal records, expulsion notices, security officer reports or correspondence, bullying investigations) • Health records (heath screenings, accident reports) • Staff reports (social worker, teacher, and aid records, communications to and from parent/guardian, email and non-email correspondence between staff/teachers regarding the student) • Electronic database information (IMPACT, CIS, Chancery SMS, SIM, Verify, HSI, SIR, Parent. Portal, and People. Soft) ADVOCACY TIP: If, after you review the documents you receive, you identify or suspect missing documents, feel free to follow-up on your request by specifically requesting what has been left out. 10

Demand Letter • Pre-curser to more formal conflict resolution • Can be used to request: • • Child be enrolled SPED placement change Request transportation District comply with hearing order IEP be implemented Homeless student be enrolled Aid be placed with student District respond to CSE request • Should be signed and dated • Be specific and thorough • Describe the parent’s concerns/issues including any procedural issues • State specific action being asked of the school district and/or school • Include facts, educational data, procedural timelines, outside provider findings, dates etc. … to support description of issue(s) and action(s) being requested 11

Parent’s Right to Observe • Parents have the right to observe their child at school • This can be a great way to get firsthand perspective of child in the classroom, may give insight into what special education services are being provided • Request should be in writing, signed and dated • Some schools have a particular form that parents will need to complete—you can request this • Checklist—before your client observes, discuss specific things that would be helpful to watch for 12

IEP: Requesting a CSE • • Parents have right to request a Case Study Evaluation (CSE) at any time • Be thorough and clear in describing history of child’s education and educational evidence for requesting CSE, include specifics whenever possible (i. e. dates, grades, teacher comments, etc. . . ) • Include any outside service provider or medical reports to support position that student requires a CSE • Include timeline language (i. e. “Pursuant to 23 ILAC 226. 110 and 34 CFR 300. 503(b), we expect a domain meeting to be held, or to receive a written reply explaining why the CSE is being denied, no later than 14 school days from today. ”) • After receiving a CSE request, school district has 14 school days to either: Request should be in writing, signed and dated Include student’s name, birthdate, grade and school Address to school case manager, CC’ principal/superintendent/district attorney 1. Determine that a CSE is warranted, meet with the team (including the parent) to identify necessary assessments, and obtain parental consent to evaluate OR 2. Determine that a CSE is not warranted and notify the parent in writing of its decision not to evaluate and the reasons for that decision 13

IEP: Requesting a CSE Brief Review. . . • Assessment Planning/Domain Meeting—after you request a CSE, the IEP team may schedule a meeting to discuss what types of evaluations the student needs and get written consent from parent to evaluate • 60 School Days—after the school district has written consent from the parent to evaluate, the IEP team will have 60 school days to complete all of the student’s evaluations • Eligibility Conference—after the evaluations are complete, the IEP team will schedule an eligibility conference to review the results of the evaluations and determine whether or not the student is eligible for services 14

IEP: Requesting a meeting • Every year a child’s IEP must be reviewed, parent should be made aware of these annual meetings at least 10 days prior by a written Notice of Conference • Every three years a child should be re-evaluated and the IEP services adjusted to reflect current needs, parent should also be notified of this meeting by a Notice of Conference • Outside of these set meetings, Parent can request the IEP team meet at any time • Should be written, signed and dated • Addressed to principal and case manager, CC’ school district attorney if known 15

IEP Meetings 16

IEP Meetings: Preparation • Preparing the Client: • • • Review available records with the client Ask for client input on whether previous findings were accurate, IEPs were effective, etc. Review the facts of the case and ask for updates Review the client’s goals Discuss the agenda for that specific meeting and the parent’s role at the meeting • Preparing Yourself: • Review available records including past IEPs and present levels of performance • Create an IEP meeting checklist to make sure that you address any and all concerns • Prepare questions to ask at the meeting • Request a copy of the NOC to make sure that you are prepared for all planned topics 17

IEP Meetings: At the Meeting • Attendance: An IEP team member may only be excused if: 1. The parent consents; AND 2. The team member submits a written report prior to the meeting • Participation: • Ask questions to: • Gather information • Receive clarification for yourself or your client • Reiterate information • Make sure your questions get answered • Take copious notes including: Participants’ names and titles Team members’ reports/observations If someone comes late/leaves early Your questions and requests Team’s requests of you and/or parent Time of participation Parent’s questions Parent’s request Team’s responses 18

IEP Meetings: The End and Afterwards • There is no time limit If you are running out of time, ask that a second meeting be scheduled Do not feel pressured into hurrying through the meeting • • • If you do finish, review the IEP before leaving Remember, an IEP is a legally-binding document • • Ensure that all of the services and accommodations agreed to are in place Utilize your checklist to be sure that all issues have been addressed If the parent does not agree with the IEP, the parent should not sign the waiver regarding the 10 -day waiting period for implementation of services • Especially important if the parent wants to prevent the child from being moved, i. e. , stay-put • Do not leave without finalized IEP documents • The meeting is not the end • • Ask for the progress monitoring, IEP report cards, and regular updates of any new test scores or other data If you disagree with the IEP, draft an IEP dissent to the school that includes include areas of disagreement and what happened at the meeting 19

IEP Meetings: If the Parent Disagrees At the meeting: • Have the parent articulate their concerns and priorities for the student and ask Team to add it to the Parental Concerns section of the IEP • Parent should not sign the waiver regarding the 10 -day waiting period for implementation of services • Especially important if the parent wants to prevent the child from being moved placements, i. e. , stay-put After the meeting: • Draft an IEP Dissent to the school that includes what happened at the meeting and specific areas of disagreement between Parent and the Team, include supporting evidence, data, or statements from Team’s reports to support Parent’s position if possible 20

IEP: Requesting an IEE • Independent educational evaluation (IEE): an evaluation conducted by a qualified examiner who is not employed by the district responsible for the child's education • Parents always have the right to obtain an IEE at their own expense and can request an IEE be completed at the district’s expense • Useful if district evaluations are incomplete, not sufficiently comprehensive, incorrectly administered, or if the district fails to administer an agreed upon assessment • Should be written, signed and dated • Address to the school district superintendent/CEO, CC’ district attorney if known • Include student’s name, birthdate, age, grade and school • Identify and state specific issues and evidence related to the inadequacy of the district evaluation(s), noting any procedural and substantive issues that occurred during the district evaluations • TIP: if requesting multiple IEEs discuss the inadequacy of each district evaluation in turn 21

IEP: Requesting an IEE • If Parent requests an IEE at the district's expense, the district must, without unnecessary delay: Request a due process hearing to show that its evaluation of the child was appropriate; OR Provide the IEE at public expense (unless it demonstrates in a due process hearing that the IEE did not meet district criteria) • Districts may limit the cost of IEEs, so long as the cap does not prevent the parent from obtaining an independent assessment. Parents may present evidence of exceptional circumstances that would justify an IEE exceeding the cap. A parent's wish to use a specific evaluator does not necessarily qualify as an exceptional circumstance • District evaluation criteria (i. e. where evaluations occur and the required qualifications of the examiner) apply to IEEs at public expense • If a district permits own evaluators to observe students in the classroom, it must give independent evaluators the same opportunity • OSEP (Office of Special Education Programs) has said requiring parents to pay first and then be reimbursed is not prohibited as long as the requirement does not effectively deny a student the right to a publicly funded IEE • District must consider the results of an IEE, but it has no obligation to adopt the independent evaluator's recommendations or conclusions 22

Formal Special Education Conflict Resolution 23

Formal Conflict Resolution: Options • • State Compliance Complaint Administrative Due Process Hearing Request • • • State-Sponsored Mediation Federal Court (Appeal of hearing decision) Department of Education’s Office for Civil Rights Complaint (OCR Complaint) 24

State Compliance Complaint: Filing • Used for procedural violations, failure to implement IEP, systemic issues, or to follow a Due Process Order • Not used for disputing child’s FAPE needs • Complaint is filed by parent or organization alleging violation of IDEA • Required Components: • • In writing Must include names and addresses Illinois State Board of Education (ISBE) Form; and Signed parental consent to release information to ISBE • Complaint is not limited to a specific child • Statute of Limitations: Complaint must be filed within one year of alleged violation (See 34 C. F. R. §§ 300. 151 -153) 25

State Compliance Complaint: Process Complaint District Response Parent or organization files complaint with ISBE alleging violation of IDEA District has opportunity to respond and can propose solution or suggest mediation Investigation and/or review of information If not resolved, ISBE must review all relevant information to determine if District violated IDEA. ISBE may decide to conduct independent on-site investigation. Decision Written decision with findings of fact and ISBE’s reasoning. May include followup steps required of district. All steps must be completed within 60 days of filed complaint. ISBE investigator can request an extension from parties. 26

State Compliance Complaint: Findings • ISBE should release findings within 60 days of filed complaint • If find FAPE was denied, ISBE can order: • Compensatory education • Reimbursement of costs (tuition, etc. ) • Other corrective action (e. g. , new policy) • Parent may utilize both Due Process and State Complaint • • • However, ISBE cannot address any issue currently before a hearing officer If issue decided at hearing, officer’s order prevails over ISBE’s finding ISBE finding may be used as evidence in due process (See 34 C. F. R. §§ 300. 151 -153) 27

Due Process: Filing • An administrative hearing is similar to a trial, but is held before a hearing officer instead of a judge • Purpose: • To resolve major disputes between the parent and school district relating to the identification, evaluation, or educational placement of a child with a disability OR • To resolve whether child received free and public education (FAPE)—this is substantive due process; OR • To resolve whether a procedural error resulted in a denial of free and public education (FAPE) that: 1. impeded child’s right to FAPE; 2. significantly impeded parental participation; OR 3. caused deprivation of educational benefit 28

Due Process: The Complaint • Complaint must be hand-delivered or mailed to the office of the district superintendent • A courtesy copy should be sent to the Illinois State Board of Education (ISBE) • Required Components: Name of the child Address of the child’s residence Name of the school the child is attending A specific description of the nature of the problem including claims and supporting facts • A proposed resolution of the problem (relief requested) (See 34 C. F. R. § 300. 508(b)) • • 29

Due Process: The Complaint • Burden of persuasion is on the filing party • Burden of production is always on the district (See Schaffer v. Weast, 546 U. S. 49 (2005)) • Statute of Limitations: Two years from the date the parent/guardian knew or should have known of the basis for the complaint • All claims must be included in the hearing request • Claims cannot be raised for the first time at hearing • Claims not previously alleged may be deemed waived 30

Due Process Timeline Request Hearing Deliver the Complaint to District’s Superintendent and ISBE District Responds to Hearing Request District must respond within 10 days of receiving hearing request D U E Resolution Period 30 Days IHO Appointment ISBE appoints Independent Hearing Officer (IHO) within 5 days of hearing request Strike Hearing Officer May strike IHO once as matter of right within 5 days of assignment Parties Decide on Resolution Session Within 15 days of receiving hearing request, parties decide whether to convene or waive resolution session If waived, Resolution Period ends. Prehearing Conference IHO must convene conference 14 days or more before hearing date; Parties must disclose intended witnesses and exhibits prior to conference P R O C E S S Prehearing Period 45 Days If convened, the parties engage in a resolution session and/or mediation between 15 to 30 days after hearing request was received by District 5 -Day Disclosures Parities must disclose their final witness and exhibit lists, including copies of all physical evidence 5 days prior to the hearing H E A R I N G 31

Due Process: Preparing for Hearing • Case Plan: Develop your theory of the case and determine how you will prove each claim • Evidence: • Make regular and repeated requests for school records from the district to ensure your materials are up-to-date • Ask your client to obtain copies of any reports made by outside providers/doctors • Witnesses: • Consider whether student and/or parent should testify • Expert witnesses are almost always necessary to counter testimony from district staff 32

Due Process: Hearing Officer • Determine key issues with Hearing Officer at Preliminary Hearing Conference or Status Conference including: • • • How subpoenas, motions, and replies are handled Location Witness order Number of days Order of cases Written v. Oral closing statements 33

Due Process: Hearing Order • Hearing Officer (IHO) must issue an order within 10 days • If parent prevails: • IHO may order requested relief or decide other form of compensatory education, such as: • • • Tutoring Speech services Educational placement IEE IEP revisions Prevailing party can file fee petition in federal court to obtain reasonable attorneys fees and expenses, note expert witness fees are NOT part of costs (See Arlington Central SD v. Murphy, 548 U. S. 291 (2006)) • Either party may ask for clarification • Either party may appeal a hearing decision • In Illinois, must file appeal within 120 days of final hearing order • In Federal court, must file appeal within 90 days 34

DOE’s Office for Civil Rights Complaint (OCR) • Complaint can be filed by anyone alleging violation of civil rights laws by body receiving federal funds (Section 504, Title IX, etc. ) • DOE’s Office enforces federal civil rights laws that prohibit discrimination on the basic of: • race, color, national origin, sex, age and disability • OCR Complaint can be filed simultaneously with a Due Process complaint but cannot address the same issues • OCR has issued a Case Processing Manual that should be used for all OCR complaints • Statute of Limitations: Complaint must be filed within 180 calendar days of date of alleged discrimination • Timeline can be extended upon showing of good cause 35

Case Study #1 Diana (8) is a third grade student. She has an IEP for Speech/Language Disorder because at age two she was referred to Early Intervention services for having a fiveword vocabulary. For the past six years Diana has been receiving 30 minutes of speech therapy per week and her speech has shown significant improvement. However, in Kindergarten Diana began to display significant delays in reading and writing. According to Diana’s teachers, Diana is essentially illiterate. In first grade the school gave Diana extra reading instruction in a small group setting to try to get her on grade level. Diana’s first grade teacher requested she be re-evaluated for additional special education services, but the school declined. In second grade, Diana participated in small group reading sessions twice a day, but her reading did not improve. Now Diana is in third grade and her father David has come to LAF for help getting Diana’s IEP changed to include services for reading. LAF attended an IEP meeting and advocated for Diana to be re-evaluated and for additional reading services to be added to her IEP. Both requests were denied. David believes the district is wrong for declining to re-evaluate Diana. What steps should be taken to advocate for David (and Diana)? 36

Questions 37

Resources Illinois State Board of Education www. ISBE. net Wright’s Law www. wrightslaw. org OSEP www. osepideasthatwork. org PACER www. pacer. org Parent Center Hub (hosts all NICHCY data) www. parentcenterhub. org Department of Ed www. idea. ed. gov 38

LAF Ed Law Pro Bono Project: cburnett@lafchicago. org 312 -229 -6335 LAF’s Main Intake Info: www. lafchicago. org 312 -341 -1070 Join us for Part III! Basics of Ed Advocacy 3: School Discipline Thursday, February 23, 2017 at Noon 39