Advanced Track Hot Topics 2017
You Be the Judge: Dueling Attorneys, The Facts, and the Law
Andrew Faust (Pennsylvania school attorney)
Dennis McAndrews (Pennsylvania parent attorney)
William Culleton (Pennsylvania hearing officer), presenters
How often do we see a case where we’d like to give a piece of our mind to the attorneys and hearing officer, or administrative law judge? This will be your chance. A musical prodigy with autism and the other members of the school jazz band are locked in a struggle that could make or break a career. Our young Coltrane can bend a note, but is behind in academics due to her chronic truancy, social isolation, family conflict, and at times dangerous melt-downs. After years of parental nagging, the LEA has finally identified her as eligible and offered an IEP. How restrictive must her academic environment be? Does her inclusionary IEP offer a FAPE on its face or should the LEA pay for next year at the ultra-private Miles Davis Academy? What to do when a younger Lady Day trolls our star and some of her ninth grade classmates join in? Should the hearing officer craft a remedy for alleged educational neglect under the rubric of child find? If so, what should that remedy look like? It’s your turn to sort out and do justice as two lions of the Pennsylvania special education bar and an experienced hearing officer grapple with issues that we all see every day, though not always with musical implications. You will hear their take, and then give your own.
The IDEA Settlement Process: When to Hold ‘Em and When to Fold ‘Em
Michael Stafford (Delaware school attorney), presenter
Dennis McAndrews (Pennsylvania parent attorney), reactor
These seasoned special education attorneys view the negotiation process through different lenses in cases headed for a due process hearing and in negotiations for IEP services and out-of-district placements. They will discuss techniques and strategies for assessing your case, and factors to consider when deciding whether to go to a hearing or settle. These presenters have learned from experience that often it’s not all about money, and they will share their knowledge of the various tangible and intangible factors that weigh in when negotiating a settlement.
Child Find: Foresight and Hindsight
Deborah Mattison (Alabama parent attorney), presenter
Gabrielle Sereni (Pennsylvania school attorney), reactor
If a court’s hindsight is indeed 20/20, how can school districts develop equivalent foresight concerning child find, thus limiting their exposure to compensatory education and tuition reimbursement awards? School districts and parents alike see child find as the vital first step in the IDEA’s special education eligibility determination process. Districts, however, need to notice “red flag” situations that have the potential to undermine appropriate child find. As one example, RTI and other regular education remedial strategies present unique opportunities, but also distinct “reason to suspect” challenges. What is the balance to be struck, and what are the appropriate time line considerations? An experienced parent attorney and an experienced school attorney present the most recent case law and explore the factors relevant to effective child find decision-making, including also the relationship of child find to eligibility and FAPE.
Claims of Inability to Implement the Proposed IEP: Empty Promises?
Michele Kule-Korgood (New York parent attorney), presenter
Brooke Say (Pennsylvania school attorney), reactor
What happens when a proposed school is not capable of implementing the IEP, or a parent claims it is not capable? In many districts, this otherwise seemingly unfathomable claim is increasingly emerging. The primary but not exclusive example thus far is New York City, where IEPs are routinely created without a specific school or class placement in mind. In such large systems, how does the district balance the need to truly individualize a program while still addressing feasibility limitations? And, on the other side, should the parent blindly “trust” that the assigned school or class is able to implement the IEP as designed? What information is the district obligated to provide to a parent about the specific site that is ultimately designated to implement the IEP so that the parent has the opportunity to participate meaningfully in the decision making process? If a parent challenges the proposed placement, what evidence can – or should – be introduced to help the fact-finder make a determination? Together, we will explore these and other questions for this latest dimension of FAPE.
FBAs, BIPs, and MDRs: Legally Deciphering the Alphabet Soup of Behavior Management
Laura Anthony (Ohio school attorney), presenter
Jennifer Valverde (New Jersey parent attorney), reactor
This session is intended to present an in-depth look at the legal boundaries for behavior management challenges. First and foremost, what have the courts established for these legal boundaries? Second in legal weight, what guidance have federal agencies provided to fill the judicial gaps? Last and by far least in terms of legal weight, what can we learn in these gaps from hearing officer decisions? Within the “alphabet soup,” we will legally demarcate the following behavior-related issues: (1) FBA, BIP, MTSS, and PBIS; (2) MDRs and IAESs; and (3) BCBAs and ABA.
Current Supreme Court Cases: Their Legal and Practical Meaning
Isabel Machado (New Jersey attorney), presenter
Maria Blaeuer (Maryland attorney), reactor
With fortuitous timing, this session is scheduled in the wake of the most meaningful case impacting special education in decades. Endrew F. is the first Supreme Court case to address the evolving substantive FAPE standard since Rowley (1982), and this recent unanimous decision merits careful examination in light of its generalized but individualized formulation. Join the presenters as they trace the history of the Endrew F., explicate the Court’s significant ruling, and explore its potential impact on special education. Be among the first to consider its pronouncement that school districts must propose IEPs that are “appropriately ambitious.” The session will also include an overview of the Court’s decision earlier in the current term, Fry v. Napoleon Community Schools, which addressed whether the parents must exhaust the IDEA’s administrative hearing process before going to court for non-IDEA, such as § 504/ADA, claims.
Comparing Section 504 and the ADA with the IDEA: Significant and Subtle Differences
Dr. Perry Zirkel (Lehigh University Professor Emeritus of Education and Law), presenter
This session will provide a systematic and comprehensive comparison among Section 504, the ADA, and the IDEA in terms of the respectively applicable legislation, regulations, and case law. The comparison addresses various key student-specific issues, such as eligibility, services, procedural safeguards, discipline, enforcement, and litigation. Section 504 questions that are often the subject of confusion and that will be addressed directly in the context of this comparison include, for example, the following: 1) Does Section 504 and/or the ADA require school districts to provide evaluation or other services for students enrolled in private, including parochial, schools? 2) Does child find apply to 504-only students? 3) Does the ADA provide more stringent requirements than does the IDEA for (a) hearing impaired students and/or (b) service animals? Does Section 504 have any requirements for expulsion of 504-only students that exceed the IDEA requirements for expelling students on IEPs?
Section 504 and the ADA in the Schoolhouse and the Courthouse
Mark Weber (DePaul University Vincent DePaul Professor of Law), presenter
This session will examine the role that Section 504 and the ADA play in the education of students with disabilities, focusing on recent case law. The discussion will include rights and responsibilities specific to (1) students covered by 504 and the ADA but not the IDEA (“504-only students”), and (2) students with IEPs under the IDEA who are also covered by Section 504 and the ADA (“double-covered” students). Potential topics include service animals, athletics, bullying, Communications Access Real-Time captioning (CART) and other communication accommodations, building accessibility, student discipline, seclusion and restraint, retaliation, appropriate education, and least restrictive environment. The session will also consider damages awards and other remedies for violations of the Section 504 and the ADA.