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SST Meeting Video:
- Where's the breakdown that led to the special ed referral?

When the gen ed teacher said "maybe we can reward her for paying attention" which led to an assumption

- What assumption was made?

Ava's inattention is behavioral in nature OR motivation-related; we're assuming her inattentive is in her control and that a reward would fix it or motivate her to change it but it may not be a lack of motivation

- What data did the team/teacher have in reaching this conclusion?

In this instance, there was no attention data presented or discussed as a team/with the family

- What other reasons might exist for why Ava needs to be prompted before she begins an assignment?

Might not be able to hear

May need addtl processing time

May not be interested in the task

Not confident/anxious about starting and making a mistake

Likes the attn from the teacher coming over to prompt her

She knows she won't finish on time so it's easier not to try in school and finish it at home later

Her BFF sits next to her and distracts her from starting

Doesn't understand the directions presented only orally

- In the video, the team didn't answer these questions!

Crafting Meaningful Accommodations/Interventions in the Gen Ed Setting (before a special ed referral!)
- There is no "accommodation bank" -- they're limiting, don't force you to ask the right questions in order to design effective ones
- No "automatic" accommodations for a specific impairment or diagnosis (see this a lot in IEEs)
Under Section 504...
- Step #1: identify the difficulty the student is having in the educational environment

Ex. "Joey's ADHD (impairment) substantially limits his ability to concentrate (designated MLA)"

Can be more than one

- Step #2: relative to that difficulty, ask "when?"

"Joey's ADHD (impairment) substantially limits his ability to concentrate during whole group instruction ( MLA)"

- Step #3: ask "why?"

Invite student to meeting OR teacher can gather in advance

"Joey's ADHD substantially impacts his ability to concentrate during whole group instruction because:

His medication wears off later in the day

His table peers distract him

He prefers to draw

- Step #5: add more details

Preferential seating is NOT an accommodation!  It is a great concept but means nothing if not everyone knows how to implement it (ex. if we just write preferential seating on a plan, it can be executed in so many ways -- next to teacher, close to door, away from annoying peers, far from distraction, near window, etc.) -- leaves too much room for disagreement or confusion

Ex. "prompt for attention" --> when teachers notice J drawing, they will do a quick whole group reset or give J a quick non-verbal prompt

Ex. "preferential scheduling" --> counselor shall schedule Joey's core academic classes early in the day

When we ask the "why" we can individualize the "how"
Examples:
- he already knows it --> more advanced class
- not enough sleep --> counseling
- no friends in class so worried about group work --> assigned groups, preferential scheduling with friends
- doing homework for another class --> shortened assignments, extended time, EF supports

SST/504  Forms
- Most forms include strengths, concerns, data reviewed, action(s)
- When the forms ask the right questions to elicit the right info, we can craft more meaningful interventions
- Review Brookline's form(s): keep above and add...

What is the difficulty? (can do #1, #2, etc. - may have more than one)

When is it happening the most?

Why is it happening?  What do we think, what data supports?

Conceptual Intervention

Accommodation

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What is a Multi-Tiered System of Support?

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What is a Multi-Tiered System of Support?

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- SEL, Behavioral, Academic overlap to result in a Whole Child Approach
- "Comprehensive continuum of evidence-based, systematic practices to support a rapid response to students' needs, with regular observation to facilitate data-based instructional decision-making." (federal definition)
- If you only take home one word from this definition, it should be "DATA BASED" (not formal assessment)
- Shift in thinking from a remedial approach to a preventative approach

Which student needs help --> what help does each student need?

Usually our focus goes to students with academic deficits but we have to dig deeper than grades

Being inclusive of all students

Approaches instruction from the premise that all students in the class can benefit from my help - I (teacher) just need to figure this out for each child

Having programs and people available --> intentional design/redesign of services and supports to match the needs of the supports

Rethinking special ed folks to support and advise whole school (ex. push into classrooms on a monthly basis, consult with gen ed teachers, lead PD)

Why isn't the concept LRE applicable to non-special ed folks?  Need an inclusive setting with adults too

- How can we ensure that we're making less referrals [because our Tier 1 and 2 interventions are (re)designed to consider each and every student instead of targeting the one student who needs help?]
- Consider family involvement: if we're scheduling P/T conferences are we really promoting parent engagement at the Tier 1 level?

Conferences are typically a way to report out on progress and data which is why they don't occur early in the year

What if we shift our thinking and get family input/involvement right from the get go?

Ex. only had two teachers in her own children's schooling where teacher reached out first day of school with a form gathering input (this is Tier 1!)

OCR Input
- School districts haven't clearly defined what constitutes an intervention strategy, protocol, or process (ex. RTI, MTSS,PBIS, etc.)
- "Any intervention should be designed to address the particular behavior, obstacle, or underachievement in question"
- OCR proactively put this in a Dear Colleague letter, indicating that it's likely a common problem they see

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Forms of comp services:

terminology is broad range of services and relief - sometimes confused with comp education, response services, responsive interventions. court cases are confusing these terminologies.  Generally HOs and courts look at broad range of possible options for comp services.  They have broad authority to craft whatever appropriate relief they deem necessary to put kid back where s/he would have been.

Courts don't necessarily rely on what parents want.  They will and can go outside what parents want.

They can order comp services for any type of relief in any type of place.  SEA has "broad flexibility"

"cases are all over the place in terms of what's appropriate and what's inappropriate" Very case specific analysis not only for what's appropriate for that child but where that child should be at the time the delay was given.

Myth or Fact: You may still owe comp services to a student who is 21+. FACT.

Under 21 - current and future comp services
After Age 21 - typically, an extension of student's full educational services beyond 22nd birthday

Comp services can also include reimbursement for private services obtained to make up for deficiencies in IEP

Considerations for Comp Services (what courts consider and for IEP teams to consider)
- "Equitable principles" in the word of comp services.  Courts look at equity of the situation to determine if services were warranted.  Example of high schooler on IEP for SLD.  Lots of outside issues not related to disability.  Courts found based on student's "rejection" of services by not coming to school, participating in educational environment, it was "not unreasonable to conclude that she would fail to take advantage of any comp services awarded" (Garcia v. BOE of albuquerque)

Courts and HOs sometimes consider parent behavior in determining the amount of comp ed award.  In one case (Pittson Area Sch. Dist.) - parents were "less than forthcoming" in sharing info upon initially enrolling the student"

In Manchester Sch Dist - parents insistence on using unavailable evaluator and district's good-faith efforts were considered.

You do not owe comp services if you've fixed your error.  FALSE.

Two methods for calculating the amount of comp services that courts will use)
- Day for Day (or quantitative) - tendency is to look at minute per minute for services
- totality of circumstances (or qualitative) - for broader violations

For day for day calculations must still consider child's individual needs.  Be cautious not to overhwlem.  Most courts have tuyrned to totality of circumstances method and look at individualied analysis of what the student's actual deficits are that resulted in denial of faith.
- this should be a fact-intensive inquiry. Can use data of student's actual progress to fashion appropriate award. Allows "focus on the particular child" as required in Endrew.

When to provide services
- May require districts to "think outside the box" - can't replace current services or services already entitled to
- think before or after school
- Increase frequency of current minutes but LRE concerns
- Remediation camps if special ed services are provided
- Can't do it during ESY if student is already entitled to ESY. - may be able to increase frequency of minutes or small group 1:1 versus whole class instruction but have to be careful about LRE.

Presenter thinks that our next pandemic is going to be a staff shortage.

who may provide services? personnel providing comp services should meet the same requirements that apply to personnel providing the same types of services as a part of a regular school program.  But, a teaching assistant is better than no one at all.

May still be on the hook even if student has moved out of your district.

Comp Services and the COVID 19 Pandemic
- in DOE's Q&A basically said that before COVID, comp services was a legal remedy usually provided as a result of agency complaint, due process hearing or court decision.  It was a remedy.  Legal remedy - what parents got when they went to court.  Then COVID hits and DOE basically makes statement that we have to provide FAPE no matter what and if you don't during COVID closures then your team needs to make an individualized decision to provide comp services.
- ED has provided clarification -- "recovery services" or COPVID 19 mitigation services" are broad category of educational and support services intended to mitigate or address negative impact of pandemic related limitations
if not offered through individualized determination, would not be considered comp services.
- should not be viewed as remedy failure on part of the district but rather as a means to mitigate the impact of loss of critical skills or learning that might have occurred during the pandemic
- Prior guidance: decision to provide make up education when there is a disruption in the provision of educational services.  THIS WAS PRIOR
- OSERS said they've provided similar guidance before - districts where hurricanes have destroyed the district, basically said Endrew F does not limit the role of IEP team to determine comp services.  IEP team is more than capable and should be the one to determine the need for extent for comp services.
- OSERS particularly said parents shouldn't have to file a complaint or due process hearing or request for mediation in order to get comp services.  They should be able to ask for that at an IEP meeting

MYTH or FACT: An IEP team may determine services.

Determination Services - must make individualized decisions.  Looking at PLEP, previous rate of progress toward IEP goals and documented frequency and duration of special ed and related services provided to child prior to pandemic

Gather data where student was before schools closed, services provided and progress made during closure, and where student is now. Compare when student left and when student returned to in person instruction.

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- In 70% of malpractice suits, evidence of communication problems existed between doctor/patient
- In a Team mtng, parent should have MEANINGFUL participation opportunities -- knowing they don't have the same level of expertise, how do we level the field so parents can be partners?
- Going to an IEP meeting for the first time for a parent is like going to close on your first house --> your purpose is to sign the paperwork, not to ask questions, and you're rushed because you're aware that another group is waiting outside the door

Parent Role in IEP Meetings
- Meetings are typically at the school = home ground
- Parents are usually walking into a full room of team members, may not greet the family, engage in discussion before meeting and stop talking once parents come in
- Schools know the game plan for how meeting will proceed, "not predetermining" --> parents don't have the luxury of doing this because they often don't understand the info or process
- Are team members using their education to help or to posture at parents (ex. referring to people as "Dr.")
- Team is more knowledgable and familiar with the paperwork
- Unfamiliar language, heavy with terms
- Parent may feel outnumbered; more complex cases = even more people at the table
- Environment highlights stark difference between parent and educator; parent may not feel comfortable with expressing themselves, finding an entry to participate
- Build rapport by greeting patients/parents warmly by name
- Ask briefly about events in their life
- Maintain eye contact
- Focus without interruption
- Display empathy through words and body language
- School personnel are expected to be more civil than parents
- Be civil, be human, be kind
- Increased parent involvement = better outcomes
- Ethnic differences can be barriers to partnership and effective communication (very clear in med studies)
- African American and other minority patients = less participatory visits with white physicians, regardless of education level
- Kids with non-English speaking parents experienced medical negligence at double the rate
- Showing honest interest in parent concerns
- Patients who brought a friend or relative to appts felt more satisfied --> mentor system for parents new to IEP process? connect parents with one another, some sort of liaison
- Sometimes folks don't know its their turn to participate (ex. some older patients may not ask questions or speak because they're used to a model where the doctor dictates things) --> may need to prompt parents to engage, ask specific questions, gently and timely reminders
- Legal documentation is important but doesn't necessarily convey understanding or get the parent to know what you want them to know

What happens when parents are comfortable in the IEP process?
- If patients are more comfortable with their doc, they're most likely to "heed advice and get well"
- For parents, they're more likely to collaborate with the school; you earn their support by involving them in the decision making process
- Consider these questions:

Do we understand the parent's concerns? (ex. a parent isn't crazy, they're scared)

Does the parent understand IDEA language?

Is the team explaining acronyms and utilizing language that the parent understands?

Does the parent understand what's in the IEP?

Does the parent understand the importance of data in IDEA decision making?

- DOCTORS DON'T MAKE EDUCATIONAL DECISIONS!

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Lesson from Medical Malpractice Research
Levinson Study
- Attempted to determine what factors play into a patient's decision to sue a doctor
- Why do some doctors get sued and some don't?
- Study grouped doctors with no claims vs. those with 2+ claims
- The quality of medical care was NOT the determining factor -- same level of standard across both groups (bottom line = appropriate level of compliance)
- 1% of hospitalized patients suffer significant injury due to negligence but only 2% of this group sue
- Factors: quality of care, patient dissatisfaction and lack of trust are CRITICAL, more likely to sue if the physician wasn't caring and compassionate
- Hard to show compassion when you're over Zoom, when someone has previously filed, etc.

What do the no malpractice docs due to convey compassion?
- Use more statements of orientation (ex. "here's what we're gonna do in this visit" = a plan) -- reduces fear and anxiety and shows preparedness
- Use facilitative statements to engage in discussion, not asking yes/no questions; equal sharing of info between doc/patient (patient has more skin in the game) --> sometimes we have to help parents participate in the process
- Laugh and share humor = creates bonds and warmth
- Even if the doc didn't do the other 3 but did this: add 3.5 minutes more per visit created better relationship --> when you know that the doc is busy but focuses on time together with the patient, that creates trust

What can schools learn from doctors?
- Compliance is critical but won't end litigation
- Creation and maintenance of trust through care and compassion
- Parents tend to not sure schools they trust

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- Parents sue because they don't trust the school!
- Core of IDEA is a cooperative process; doesn't work well when parents/school are at odds
- Schools have a natural advantage in information and expertise; parents know and love their child = different motivations, how to bridge
- Procedural safeguards exist to balance parent/school expertise and knowledge
- In 2008: is it a good idea for parents to decline spec ed services?  Dept of Ed maintained it's important to maintain parent involvement and choice but "the Act presumes the parent acts in the best interest of their child" (which isn't always true)
- What happens if parents can't act in the best interest of their child?
- How can you get your child to FAPE if you can't identify what FAPE looks like?
- You need to find the mistake before the parent does and work to rectify
- Child Find doesn't end once identified -- need to constantly (re)assess how the student is doing

- A district has a series of OCR complaints -- parent alleges lack of accommodations; several years later, complains to OCR again for same reason, this time parent claims retaliation
- School doesn't lose on retaliation claim; no one had remembered parent filed
- "OCR complaint should be a dark stain on your honor forever" -- should know why you lost the complaint and don't recommit the same error --> all comes back to trust
- No accountability means you have continued trouble which does not breed trust

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Definition and Purpose - comp services were established for above and beyond what is in child's IEP as a result of a failure or a delay of district implementing IEP which resulted in denial of FAPE.

Myth or fact: Comp Services are to punish a school for not providing FAPE. Myth.  Main purpose is to place the student in the position that the studentwould be in had the appropriate services or FAPE been provided in the first place.
- When FAPE not provided
- When appropriate placement noi provided
When appropriate amount of services not provided
- Where IEP has no relation to data/evaluation
- Remedy procedural violations that resulted in denial of FAPE
When there were delays - not to punish districts.

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OSEP reminds SEAs and "LEAs that no matter what primary instrunctional delivery approach is chosen, IEP teams remain responsible for ensuring that FAPE is provided to all children with disabilities

Compacts - if you become a member state, takes an act of legislation - your state embraces the requirements for it, your state will be tasked with calibrating state laws including a provision that member states have to allow telestate and telehealth and this enables you to go to any member state and get those services remotely.

Compacts permit the practice of telepsychology and temporary in-person psychology for licensed psychs across stsate boundaris from participating states

they have to be licensed in their state and follow rules of patient in that state.

Legal layers related to telehealth

US Department of Health and Human Services OCR enforces HIPPA requirements

What happened during the pandemic is OCR under Dept of HHS said we will use our discretion and come back out and be generous in allowing you to use things in the past would not have been HIPPA compliance practices. They slowed their enforcement

under revised rules, must use non-public facing applications (no FB Live, Twitch, TikTok)

It's is likely that the HIPPA compliance requirements will come back in full force once the state of emergency ends

FERPA is the bigger deal for us - don't forget about the Children's Online Privacy and Protection Act, Protection of Pupil Rights Act\

Is telehealth a real option for this child?

we must also consider unique needs of each child

how would we decide if this is appropriate?

reconvene the team

What factors should we consider?

age, focus, disability-related needs and barriers, maturity and independence, effectiveness of telehealth for the type of service being considered

What if we do not have a choice? Something is better than nothing. Have to be able to defend that by saying we talked about unique needs of child.

What if we try telehealth and it isn't effective? Bring the team back together.

Can we mandate telehealth, even if parents or staff have reservations about it? If it substantially alters the educational program it may be a change in placement which requires consent which means we may not be able to mandate.

Is this considered a chance in placement?

if the answer is "yes" procedural safeguards apply

If we are going to do this longer time, invest in the time, money, location, equipment, so this can be an effective long term thing for you. Make sure team explores accommodations to comply with 504, ADA, and IDEA

Level of supervision - and we need to make sure this is effective.  Make sure aides and therapists alike are appropriately trained to be effective,

we have to provide effective service so have at least a conversation

Final words: we have discovered new ways to reach and educate our students, as well as opportunities to help students access the services they need.  If we do things the right way, telehealth/teletherapy may provide a lasting benefit in the future,

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- Fulfill Child Find obligations annually (ex. if you talk to a parent and attempt to trigger Child Find but they decline, continually loop back to express concern each year)
- If a parent attempts to refuse part of an eval but the school thinks we require it, we should push back; "we won't propose an eval that doesn't include X"
- Pay attention to "high dollar" words in definitions (ex. for EI, "long period of time" to a "marked degree")
- Student needs to be diagnosed with a disability AND require SDI to qualify

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- Respond quickly - here's our policy and criteria, don't have to commit to funding immediately
- File or Fund! No other option
- Ex. student its tested in cog and academics, found ineligible, parents want to pursue an outside evaluation
- Don't assume because your psych doesn't have "Dr." in their title they don't have the qualifications to conduct an assessment -- school-based staff know our students much better than a one time evaluator
- No hierarchy to the data and evals -- everything is a factor and all holds weight

Parent's Right to an IEE
- Case where parents brought in a reading eval that they paid for on their own -- data was wacky, didn't present the child as the school knew them, very cookie cutter approach
- School looked at it, the evaluator was an architect and wasn't qualified; school rejected it, parents said "but I'm paying for it!" and the school said "we are not considering this because it doesn't meet our criteria for an IEE"
- If parents disagree with eval conducting by the district, they can request public funding
- A parent is entitled to one IEE at public expense per eval conducted by the district with which the parent disagrees
- Can't force parents to give us a reason for requesting the IEE
- All we need to do is CONSIDER an IEE -- we don't have to bow down to it, let it rule what we do/know, etc.

Federal Child Find Guidance
- Long COVID is recognized and may be a basis for eligibility; beware the politics here
- Child Find should reflect pandemic realities
- Don't have to make sure every single parent is aware of Child Find procedures, just put it out there

Overcoming COVID Child Find Obstacles
- Watch for internalizing and externalizing behaviors
- Widespread screening
- Increased PD
- Provide teachers with tools and time for check in's with students -- better support teachers
- Facilitate regular and meaningful communication with families
- Guidance for parents to reduce the mental burden of remote learning, transitions, other COVID impacts

COVID Impacts vs. Disability
- Federal guidelines state that if a student received limited instruction due to interrupted schooling from COVID, should they be referred for an eval? It depends, not necessarily.
- Bottom line: limited or interrupted COVID instruction does not mean they require special education

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Case - Parent Prevails
- 6th grader with ADHD, Tourette's
- 504 Plan and RTI in place; private speech, OT, counseling
- Evaluated in 3rd, N2, parent requested again in 4th
- Court ruled that the school used RTI as a delay tactic
- Grades had been in the 70's, parent filed for due process, suddenly grades are in 90's = tainted court's view of what the school was doing
- Repeated 4th grade, attended summer school, had significant supports in place
- School waited 105 days from renewed evaluation request to respond

Case - School Prevails
- Kinder kiddo, struggling academically
- Evaluated and found ineligible, same year the school implemented RTI supports
- Another eval about 2 years later - student was found eligible
- Finding was no child find violation
- Considering Factors: youngest kindergartener in the grade, well documented communication with the family, family pulled student and unilaterally placed
- School was operating in good faith, maybe parents weren't as much
- Sig delay between eval request and school response -- court said because of all the supports in place, FAPE wasn't denied
- Had 1:1 time with teacher 3x week for reading, OT and PT supports built in = no concern that this was a delay tactic

Red Flags re: "Good Teaching" and Specially Designed Instruction
- Sometimes you have amazing elementary teachers who go above and beyond but when does it tip into more than "good teaching" and is actually specially designed instruction?
- Is the teacher providing similar supports to any other children?
- Are related services in place as "supports" and are we offering that to others?
- Grades, attendance, discipline?
- Is the child engaging and developing "typically" (keep in mind the range of "normal" is all over the place)
- Parent alluded to private evals?

Eval Regulations
- Initials: screening for instructional purposes is not an "eval" under IDEA - widespread screening doesn't trigger any timelines
- Re-Evals: can and should eval anytime something significant changes (ex. a student has dyslexia but gets into a car crash and now has a TBI)

Case - Recently Manifested Needs
- High schooler going through school with no problems, great school history
- 10th grade: in December, becomes hospitalized for suicidal and homicidal ideations
- in January, create a 504
- in February, student stopped attending school
- School never proposed an eval; family requested in March
- School acknowledged "severe anxiety" but declined to do an eval, didn't think it was a disability, events were too recent ("newly manifested")
- April: child hospitalized again, now school initiates an eval, parents are frustrated and decline to share outside reports/evals
- May: interim services reviewed (good faith), addtl assessments shared
- June: student identified as Emotional Impairment and placed student in a program
- Parents filed because the school "waited too long" but the finding was that they didn't
- EI definition has to be for a PROLONGED period over an extended time
- This child had been attending this school for a long time, things were "out of left field" so the school was able to take their time, court could see they were being serious about implementing what they could in the short-term

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Presentation by David Garner from Phoenix

- confirmed nationally that most due process cases settle
- Overall caveats: most parents are reasonable, most IEP meetings are dispute free, most IEP-related decisions are arrived at without significant dissent, most disagreements are resolved through productive collaboration.

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- Federal law doesn't say anything about ESY; it is an outcome of regs and court decisions
- Nothing that says you can't offer ESY for a 504 but really rare
- Nothing stops you from doing ESY on weekends or after school, you're just extending the school year!
- ESY is based on entitlement to FAPE
- ESY is ONLY required when it's necessary for FAPE (ask "without ESY, would a child not receive FAPE?")
- Feds have said it's ok if a state uses recoupment and retention as the measure; every kid regresses over the summer!
- No federal consent requirement for a change in placement (consider MA - can be stark differences in how states interpret federal regs)
- At circuit level courts -- #1 (MA) doesn't have a clear definition for ESY

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Self Sabotaging Behavior #1 - mixing up FAPE with "best practices" or the "extra mile"

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Self Sabotaging Behavior #1 - mixing up FAPE with "best practices" or the "extra mile"

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From a legal standpoint, it's okay to just be okay.  Schools receiving federal assistance under the IDEA are required to make available to all children with disabilities FAPE.  It doesn't demand that we go the extra mile or apply best practices in everything that we do.

- don't misunderstand that we shouldn't offer the extra mile or employ best practices.  Those are things that we should strive for.
- where we sabotage is whether we make the extra mile a legal obligation

Most of the fights in due process context is "Appropriate" in FAPE.  Endrew F case cited "FAPE is an IEP that is reasonably calculated to enable a child to make progress appropriate to the child's circumstances" -- "reasonably calculated"

"the snapshot rule" - we don't get judged in hindsight.  The standard is was it reasonable calculated to enable the child to make progress.  When? at the time the IEP was created -  based on the info that we knew at the time we created it.

Also important to note this is this is to enable the child to make progress - we are just enabling that progress. Every time the child fails to make progress, doesn't mean we didn't provide FAPE

What FAPE is not or doesn't pass muster: If all you're doing is aiming for "de minimus" that's not enough.  The standard of FAPE is "markedly more demanding".

So what is that more demanding standard? It must be appropriately ambitious and include "challenging objectives"

Must open the door to public education.  The highlighted last three phrases here can be added to a PWN.

IEP need not provide equal or substantially equal to non-disabled students.

IEP need not guarantee progress

IDEA ensures appropriate education not one that provides everything that might be thought desirable by loving parents (Bryant v NY state Ed Dept)

Tips to avoid self-sabotage:
- always ensure FAPe is provided. meet the minimum
- Recognize that just bc a student may benefit from a particular service does not necessarily that it is required
- Don't make the "extra mile" a legal obligation
- Take care to preserve discretion that is generally within the school's unilateral control (eg methodology) WE ARE THE EXPERTS ON METHODOLOGY.  We can give that away, which is self-sabotaging.

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Self-Sabotaging Behavior #2 - Agreeing to stuff you don't actually agree with.

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Self-Sabotaging Behavior #2 - Agreeing to stuff you don't actually agree with.

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"please make it stop" principle.  Where you just want to shut the parent up.

Get into your zen mode and say I'm not going to agree to this because I want to get out of this - get the parent to stop.  We are trying to satisfy the parent who won't be satisfied.

We are worried more about keeping the peace than what the student actually needs.

Keeping the peace is not the primary objective

Pick your battles: if a dispute is going to occur, its better to argue about things that are actually needed (or not needed) than to promise something you don't (or can't) deliver and then argue that it wasn't needed.

Consider IEP a contract
Think carefully about what you agree to
Choose the better battle

The key to packaging -- how do you explain to parents "we are only obligated to provide FAPE" -- it's about massaging -- use the word "appropriate".  "Here's why we want to revisit the 56 goals and 40 hours of services - is this the best use of your child's team, will this help them make the most progress or focus on smaller number of goals and achieve them and keep going"

Stellar data is your best friend - "how is your kid doing with those 56 goals? Is he making progress? If he is busting through the goals, then lets meet again and set new ones"

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Behavior #3 - Assuming the parent or advocate knows what they are talking about

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Behavior #3 - Assuming the parent or advocate knows what they are talking about

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Expressions of confidence and student advocacy should not be confused with accuracy in delineating the school's obligations

Practice disagreeing without being disagreeable

Bring "back up" if needed.  Understanding that your work and opinions may be critiqued; be prepared to defend them

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Self-Sabotaging Behavior #4 - assuming whatever the doctor ordered is required

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Self-Sabotaging Behavior #4 - assuming whatever the doctor ordered is required

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#5 Assuming that any IEP failure is fatal in due process

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#5 Assuming that any IEP failure is fatal in due process

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There's no statutory requirement of perfect adherence to the IEP nor any reason rooted in the statutory text to view minor implementation failures as denials of FAPE

IDEA counsels against making minor implementation failures actionable (meaning things that can be sued for) - Van Duyn v. Baker Sch. Dist.

When a district does not perform exactly as called for by the IEP, the district does not violate the IDEA unless it is shown to have materially failed to implement the IEP

Be honest about forthcoming in identifying and "skeletons in the closet"
Affrimatively offer to fix acknowledged shortcomings

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Cordrey v. Euckert
- 15 year old with ASD-like behaviors
- Parent put their child in their own program for ESY then came back to the school to get funding and add ESY into the IEP
- School said ESY wasn't necessary so wouldn't fund but offered an in-district program, parents said no
- Parents argued that the bar should be when it's critical, not regression data; court upheld school's decision

MM v. Greenville County
- 11 year old with ASD
- Parents declined 4 day/week preschool for school year; gave parents a 1 day/week program so they could do private Lovaas method
- Parents wanted ESY to continue Lovaas for ESY, school said it wasn't necessary
- Went to court, parties stuck with R&R standard, regression evidence was inconsistent, no clear answer on what would happen without ESY for this child

Johnson v.  Independent School District
- 8 year old with ASD, intellectual disability, seizures
- Child attended 6 week camp for 4 years at parent expense
- School: no evidence of prior regression based on observations
- Parents: brought in expert who said they predicted the child would regress without ESY but no data because had been in camp
- Court said we don't see enough evidence to help us decide; sent back to district court and said gather more evidence

T.M. v Cornwall
- Student with autism who participates in inclusion during the school year, parents want an inclusive summer option
- LRE applies to ESY as well
- May need to look into a private program to address this

Jackson-Johnson v. DC
- 16 year old student with intellectual dx
- Significant truancy issues addressed in IEP revisions
- IEP noted attendance and poor behavior will add to the regression of her reading skills
- Highly litigious parent
- Significantly jeopardized analysis employed
- Findings: attendance issue is on you, parent! the regression isn't due to the disability; finding was that no ESY was required

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More is always better belief.

Clearly explain trade offs

Be prepared to discuss continuum of options for addressing needs.  Not every need requires a goal and specially designed instruction.

PWN is the school's document - parents dont get to dictate content. When the issues are likely to erupt into a dispute, the PWN has two audiences: the parents and the ALJ/Court

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#8 - Failing to embrace your own expertise

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#8 - Failing to embrace your own expertise

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Give your staff this sense of - you're an expert, embrace it.

What courts do when they review these cases. - "courts do NOT have "carte blance to impose upon the States whatever should be imposed" - Endrew. Courts are not educational experts.

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- Biggest barriers/concerns: restrictions on service models (ex. no in-person services); lack of engagement during remote learning; lack of clarity in distinctions among ESY and regular comp services
- Some parents conflate ESY/Covid compensatory ("we need ESY to make up for X teacher having Covid for a week") -- they're different
-  Congress told the Dept of Ed to tell us what to do and Dept of Ed said nothing, meaning IDEA did not change -- you will not get grace as a district

S. Washington County District
- No dispute re: ESY
- Student did not engage in remote learning in Spring 2020
- School tried, strong evidence that the school tried to make it work for the child
- State allowed hybrid ESY, this school only offered this student a remote option (which hadn't worked before)
- Finding: the school failed to meet its ESY obligations (when they had an option to do more they chose not to)

Tips
- ESY requests can stem from childcare needs -- consider helping connect families with community resources and programs even if ESY isn't in the IEP
- Closely monitor team to ensure + progress monitoring data
- Be precise in identifying WHY the ESY is in place; if we want to "discharge" from ESY, we can lead back on the why to remove too
- Be prepared to offer appropriate alternatives to parent-preferred ESY services (use as leverage; don't feel compelled to design ESY around parent preference)
- Don't let pre-existing program options dictate recommendations, need to be flexible
- Keep compensatory and ESY services distinct from one another
- Carefully consider handling of other matters (ex. truancy, discipline, etc.) and whether it may be retaliatory

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Bonus: Failing to assess the "people factor" of due process

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Bonus: Failing to assess the "people factor" of due process

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Due process is terrifying for most people in the trenches.

Do we have key witnesses with an axe to grind? Ensure that all key witnesses understand the issues at stake in the dispute

IDEA does say that school only gets their fees claimed if the parent filed claim is frivolous. If you've made a written offer of settlement before the hearing and parents get better result at the hearing, the offer of settlement cuts off the fees. Puts pressure on parent and attorney to accept the reasonable settlement proposal.

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- 3 types of ADHD:

predominantly inattentive

hyperactive-impulsive

combined type

- Must know which type a child has so that we can tailor accommodations accordingly; need to write them in a way that gen ed can implement CONSISTENTLY across the board
- Every type of ADHD impacts the parts of the brain related to thinking, concentrating, and planning (but they present differently!)
- School psychs can gather this info in assessment; we often don't look for it but it's vital
- So easy to get an ADHD dx, especially from someone on the outside, so even more important to talk with teachers, gather info about what's happening in the school setting
- When writing accommodations, very common to carryover last year's "plus"
- OCR guidance: make sure we aren't drafting accommodations that are based on generalizations/misunderstandings of a certain disability type (in this case, students dx with ADHD)
- Avoid statements like "we offer this to all our ADHD kids" or "for kids with ADHD, we typically offer ____"
- Guidance counselors should be helping with teaching test-taking strategies, organizational skills, etc.; can leverage as a layer of support (but note if we're teaching skills, we're moving into IDEA land and SDI)

Accommodations
1. Extended Time:

If a student has trouble with conceptualizing or time management, ET on assignments does not help them or address the root

We can't even necessarily "create" extra time

Most common accommodation for ADHD kids but it's the most inappropriate

We're giving them more time to ineffectively manage

2. "Rollover" or "Cut and Paste" Accommodations

Don't go in with a sheet of last year's accomms

Have them handy but start with a blank slate -- "what should we add this year?" -- extinguishes fight about what you're ripping away

Student needs can change over time (ex. adjustments to meds, child learns to cope or manage some pieces of their ADHD, learn new behavioral techniques)

Be wary of IEPs/504s that show the same accommodations year after year

3. "As Needed" or "As Necessary" Accommodations

Does the teacher have enough info to make this determination, know when to implement, etc.

Is the student capable of making this determination?  Will they advocate for themselves?  Is there a potential for misuse?

4. Breaks

Kids with ADHD already lose valuable instructional time due to their inattentiveness so be cautious with granting additional breaks

How do we set parameters?  How long, how often?

What type of break? (ex. head down on desk, walk to back of the room, headphones, etc.)

Good example - standing desk at the back of the room that anyone can use, alternative work choices within the room

5. Rewards

Might be ok for demonstrating things that we taught them (ex. keeping a locker organized, using a planner, etc.)

Not appropriate to use a reward for reducing involuntary ADHD behaviors (ex. if you stop tapping your pencil, you get an end of day reward)

Don't reward them for not exhibiting ADHD -- we're essentially saying, "if you stop having ADHD, we'll give you a reward"

CAN say "here's a replacement behavior for calling out in class" -- more defensible way to implement behavior plans for ADHD

Essential question: have you TAUGHT the child to correct, improve, or replace the behavior?

You can then measure these positive changes

Once we start needing to TEACH the child something, we're tipping into SDI

6. Class Notes/Note Taking

Don't do peer note taking; not appropriate to involve another student in a child's accommodation implementation

Instead try pre-filled notes or study guides

Consider active or passive?

Notes where a student needs to fill in items/fill in the blanks promote engagement/partially filled in, etc.

Note-taking fosters focus!  Don't take this away from students with ADHD!

7. Assignment & Homework Reduction

Could be viewed as discriminatory

Ex. if an ADHD student only does half the problems, they only get half the practice but are expected to complete the same assignments and tests

8. Asking Student to Re-state Instructions

This can be effective in both actively engaging the student and building skills to follow directions

Periodically ask students to re-state but don't focus specifically on the child with ADHD or have all students re-state to a nearby peer

9. Preferential Seating

Better to say "near the focal point of instruction" or "near the future" but in many current classrooms, there really is no such place; classrooms are more dynamic

Given what we know about a specific environment, what does preferential seating actually mean?

Ask: what are we trying to achieve? why is one type of seating preferred?

Ex. seat them so most of distractions are behind them, seat next to highly focused peers, seating near back of room for movement, etc.

Who's preference?  Does the teacher pick, the student pick?  Do either of these parties have the skills or info to determine this?

10. Daily Planner Checks by Teacher

Make sure to indicate who's job it is -- does the child bring the planner to the teacher or does the teacher initiate?

In summary: we do not want to put in anything that creates a dependent child!

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- Often appears co-morbid with other diagnoses/conditions
- Covid resulted in kiddos on the edge of anxiety tipping over into highly anxious; growing problem in this Covid era

Child Find
Zamora v. Hays School District
- Middle schooler with ADHD, depression, and GAD misses school, goes to nurse often
- Parents asked about 504, meeting was held and 504 developed
- Then in high school parents ask for spec ed eval but then refuse to sign consent
- Parents submit letter to indicate GAD and also sue for Child Find for not evaluating but they wouldn't consent
- Moved student to a charter, having problems
- Hearing officer commands assessment, student doesn't qualify, parents appeal
- On appeal, court ruled 504 was sufficient
- Note recurring issue of student with anxiety taking high-stress advanced courses

Mr. F v. MSAD
- Parent submits medical dx of ADHD and anxiety
- Parents say they're having trouble getting him to school
- At 504 revision meeting, parent asked for spec ed eval but then paused and said nevermind
- School says can we do an eval under 504, won't call it special ed eval
- Eval confirms ADHD and anxiety dx
- Parents hospitalized student, comes back with ASD dx, conflicts with school-based dx
- School then does eval, qualifies student with ED, don't agree with ASD
- Parents disagree with ED label
- In summary: put 504 in place for anxiety, monitor closely, make updates, if no changes move to spec ed eval
- Dept of Ed says 504 determination does not require a medical diagnosis

DT v. Cherry Creek
- High school student moves to a larger high school across the country, struggles with anxiety at new school
- Parents requested 504 plan
- Parents catching him at home doing drugs, eloping, said he wanted to shoot up the school
- School made crisis center referral but parents didn't follow up
- Parents sue for Child Find delay; court says school isn't liable
- False assumption: you can't be eligible under IDEA until you've tried gen ed supports and exhausted all options

But Child Find should trigger at any suspicion of disability and need for SDI; can overlap with trying gen ed interventions

Child Find Takeaways
- Be careful not to over-rely on academic performance in making CF decisions
- 504s must be closely monitored for effectiveness
- If in doubt, offer parents an evaluation
- "Safe zone" with RTI/MTSS is before you know or suspect a disability

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How do we mix these three? We came up with the idea of being a first responders.

there's a big process feds put together in 2020 for how school districts respond, if there is a complaint of sexual harassment.  My focus was going to be look at the intersection of SE laws and T9.  What ended up happening, everyone had a ton of questions about the T9 process which also had a lot of overlap with SE laws.

When DOE put out the 2020 T9 regulations, they had a lengthy discussion of all the data out there of how individuals disabilities are disproportionately more likely to be harassed, bullied, etc.  The data that OCR and DOE put out when they proposed the regs, has fascinating stuff -- students with disabilities are 3-4 times likely to be involved in sexual harassment compared to non disabled peers.

The more severe the misconduct the more likely it is that you can do absolutely nothing.  Some of it is counter intuitive.

Lots of statistics on how people with disabilities are way more likely to be sexually assaulted or discriminated against.

SE law and T9: very hard to comply with both at the same time.  In practice, have to make decisions about how we are going to respond.

For the first time, CRDC will collect data for 2 years in a row. We can expect this data to drive changes to 2020 regs and enforcement from ED and OCR.

Only way to talk about the regulations is to talk about what happened before 2020.  What good is an equality of education statute if on the basis of your sex you are subjected to harassment and assault if you can challenge your district?  Tehre's no rememdy in T9 that says a school can be sued if sexually harassment occurs.  Judges created a remedy to say if a district has knowlege of conduct and has responded to that conduct that is deliberately indifferent, if conduct meets threshold and someone with actual knowledge in the school failed to respond in reasonable inappropriate way, can sue for damages and ask for attorneys fees.

What we used to tell clients is it's a high standard.  To prove someone has been deliberately indifferent, it's not exactly ignoring but it's pretty close.  Schools have that have done nothing other than interviews and say knock it off have won.

OCR prior to new regs had been using a lower standard instead of what did someone actually know, they were looking at what schools reasonably should have known.

Ed said we've come up with this new process for allegations of sexual harassment, we will aplly the court standards, which have always been deferential to school officials' decisions.

The new regs became effective August 2020.  T9 has always been a response statute. t9 is about your response to allegations of sexually harassment.  You won't be liable in court if you respond the right way. Response you are required to follow for certain things -- the law didn't say you shall prevent.

There are unique things about the T9.
- use the word complainant (individual who is alleged to be the victim of conduct that could constitute sexual harassment)
- use the word respondent (individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment)
- before we deny the respondent any benefits of our education, we have to go through this formal process to make sure we knew what actually happened.  If it seems respondent focused, but only way to undrestand regs, have to think about it from opposite perspective

The players on the school team
- T9 Coordinator
- Investigator
- Decision-maker
- Appellate Decision-Maker
- Informal Mediator

some of these roles can overlap.  Coordinator can investigate.  T9 can't be a decision-maker because we want separation.

Formal complaint is what starts the process.  No "magic words" requirement. If in writing in IEP that there has been sexual harassment, it's considered a formal complaint.

We are talking about sex based misconduct.  Under this, there are a lot of things that can happen that arent covered by these new regs.  Example: girl walks into principal office and said boy called her a whore 4 times.  Is it sexual harassment as defined by regs?  Bobby doesn't think so. In the flow chart - this is sexual misconduct but not in regs

Three different buckets of definitions to say this is sexual harassment -

Quid Pro Quo - an employee of recipient conditioning the provision of an aid, benefit, service of a recipient on a individual's participation in unwelcome sexual conduct. QPQ sexual harassment.

SPOO - Severe, Pervasive, Objectively Offensive. Standard used by courts. When you can be sued and have to pay money damages.  Courts looking at whether the conduct person suing was subjected to rose to the level of this definition. SPOO to a reasonable person that if effectively denies a person equal access to education program or activity.
- and imagine in context of student with IEP -- are you comparing reasonable person as student with IEP with same needs? there's an argument to a reasonable person, it wouldn't matter but not to the student who may be of low IQ.

Listed Criminal Conduct - series of sexual assault crimes.  They took list of assault crimes that was put out by FBI and said if any of these crimes under fed law have been committed, now you're also in the red circle (look at flow chart).  Fondling is the hardest one - it's touching of private body parts of another person for the purpose of sexual gratification without the conset of the victim, including instances where the victim is incapable of giving consent because of his/her age or bc of his/her temporary or permanent mental or physical incapcity.
Fondling is different bucket from SPOO

ED elected to not define consent and left to local districts to define so long as consistent with SEAs and overlap with students with disabilities.

Response standard
- if district has to promptly respond in a manner that's not deliberately indifferently. What they did with new regs: if it's an allegation of sexually harassment your response is not regimented by ED.  If it is he called me a whore 3 times yesterday, we still have to hve a prompt response and respond in a manner that's not deliberately indifferent but don't have to go through formal grievance process.  If he did that and grabbed my butt, we now have to follow an entirely different process dictated by the new regs.

- new regs said every employee of school that have knowledge of sexual harassment have not put the district on notice.  Think about sub teacher.

Timeline - sexual harassment occurs, someone in district has actual notice, then we say we have some general obligations (what do we need to do for these students to figure out how we can educate them during the investigation process - typically called supportive measures). If you remove one student from that setting, may have to pull team together and determine if change of placement. There are times when we can't match supportive measures of gen ed to SE students.

How do you separate when you have too many IEPs and we have to find another location believe can provide FAPe - it has not been possible in some cases. This is why if we have SE students involved in allegation of sexual harassment, that principal who wants to send the kid out has to cross check that with T9 coordinator.

You can always place a staff member on ad min leave who has been accused of sexual harassment.

Respondent presumed not responsible - no discipline, even if it happens in hallway on camera. You can only discipline after youve gone through the T9 process.

You have a family of someone who was groped in the hallway. You meet with family and T9 coordinator says we have those process, you make a formal complaint, etc.  Parent says we don't want to go through that, it sounds terrible, it has to stop.  Coordinator says, if we want to discipline, we have to file a complaint. Either the T9 coordinator files or we don't discipline the student.

Investigation then starts, send all materials to both parties and have 10 days to review them and respond. We sit there for 10 days, likely unable to remove students, change placement, and just sit and wait before we can actual finalize the investigative report. Second crazy part is after investigator files the report with decision maker, that person waits 10 days to give family to review.

Supportive measures - in particular as it relates to students with disabilities the dept did focus on the law. What that may mean is we have to put a safety plan that covers the student. Schools mostly put a 1:1 para with that student.

If we can sit down and explain good outcome here, avoid disruption to FAPE is through an informal resolution. Lots of info on steps to go through informal resolution, including prep in the slides.