8
Statewide Systemic Areas of Noncompliance
TEA Monitoring, Due Process Hearings, & Complaints Investigations
1. IEP not having all required components appropriately documented2. Provision of services by certified personnel
3. Parent participation in ARD meetings
4. Parents afforded the opportunity for meaningful participation in eligibility determination and development of the IEP
5. IEP not calculated to provide educational benefit
6. IEP not implemented as written
7. Patterns of service and LRE
1. IEP not having all required components appropriately documented
· Present Levels of Academic and Functional Performance (PLAAFP)
· Assessment
· Measurable annual goals
· Progress reporting
· Documenting the frequency, duration and location of services
· Statement of special education and related services
· Transition services
Examples of Compliance:
· IEP written clearly enough for parents and providers to know exactly what to expect.
· Student abilities, strengths and needs clearly stated and lead to services, supports and placement.
· Goals clarify who, what, where perform and when and reflect a measurement process.
· Objectives written if alternative assessment used.
· Goals lead to services and frequency, duration and location so parents and providers will know what to expect.
· Progress reporting matches goal—If goal stated in quantitative terms, progress must be reported in corresponding quantitative terms, e.g., 3 out of 10 times or in a percentage or other specific method
· Deliberations used as another opportunity to inform parent of progress; .Again, format of reporting progress should match how goal is written.
· Statement of how often progress will be reported part of form or documentation. The IEP does not have to state how the progress will be collected nor how it will relate to goals.
·
Federal Regulation Reference
34 Code of Federal Regulations §300.320. Definition of individualized education program.
Texas Administrative Code Reference
TITLE 19 / EDUCATION
PART 2 / TEXAS EDUCATION AGENCY
CHAPTER 89 / ADAPTATIONS FOR SPECIAL POPULATIONS
SUBCHAPTER AA / COMMISSIONER'S RULES CONCERNING SPECIAL EDUCATION SERVICES
DIVISION 2 / CLARIFICATION OF PROVISIONS IN FEDERAL REGULATIONS AND STATE LAW
RULE §89.1055 / Content of the Individualized Education Program (IEP)
Resources
Texas Education Agency Guidance Documents:
Legal Framework at: http://framework.esc18.net/
Related Services – update pending at: http://ritter.tea.state.tx.us/special.ed/resources/relserv.html
Standards Based IEPs – update pending—7 step process and good examples
http://ritter.tea.state.tx.us/special.ed/guidance/sbIEP.html
Student Attendance and Accounting Handbook – pg. 84
http://ritter.tea.state.tx.us/school.finance/handbook/index.html
Texas Project FIRST Guidance
Using the ARD/IEP Agenda to Understand the Special Education Process:
http://familytofamilynetwork.org/index.html
Transition
http://ritter.tea.state.tx.us/special.ed/guidance/transition.html
http://www.transitionintexas.org/transitionintexas/site/default.asp
Additional resources
A series of modules from Building the Legacy: A Training Curriculum on IDEA 2004 created by the National Dissemination Center for Children with Disabilities (NICHY)
Modules 12 through 16 discuss Individualized Education Programs (IEPs). These modules can be found at:
http://www.nichcy.org/Laws/IDEA/Pages/BuildingTheLegacy.aspx
Project Forum at National Association of State Directors of Special Education (NASDSE) is a cooperative agreement funded by the Office of Special Education Programs of the U.S. Department of Education. They have produced two documents related to standards based IEPs. These documents can be found at:
http://www.projectforum.org/docs/SevenStepProcesstoCreatingStandards-basedIEPs.pdf
http://www.projectforum.org/docs/Standards-BasedIEPs-ImplementationinSelectedStates.pdf
Region XX has online modules on Standards Based IEPs designed for Texas educators.
2. Provision of services by certified personnel
· Special education teachers not certified
· Special education teachers not highly qualified
· General education teachers not certified
· Paraprofessionals not certified (3 levels based on experience of aide)
Examples of Compliance:
· Special education teachers highly qualified in core classes if teacher of record
· General education teachers certified in subject(s) teaching
· Paraprofessionals certified in one of three levels with the required level of teacher supervision
Level 1: Performs routine tasks under the direction and supervision of a certified teacher or other professional personnel.
Level 2: Performs tasks under the general supervision of a certified teacher or other professional.
Level 3: Performs and assumes responsibilities for tasks under the general guidance of a certified teacher or other professional personnel. Responsibilities may include relieving teacher of selected exercises and instructional drills with students.
· Special education teachers perform one function at a time, e.g, must not serve as the general education teacher and special education teacher simultaneously. Exception: Preschool teacher can be dual certified and serve both roles simultaneously.
· Teachers can be split funded and perform different roles (general and special education) at different times.
· In charters, special education teachers must be certified in the same manner as if employed by LEA. If special education teacher is teaching the core subject in a resource setting in the charter, special education teacher must be highly qualified.
· In charters, general education teacher certification is based on the charter document and can vary from those standards of a LEA.
·
Federal Regulation References
34 CFR § 200.56 Definition of ‘‘highly qualified teacher.’’
34 CFR § 300.156 Personnel qualifications.
Texas Administrative Code Reference
Texas Administrative Code
TITLE 19 / EDUCATION
PART 7 / STATE BOARD FOR EDUCATOR CERTIFICATION
CHAPTER 233 / CATEGORIES OF CLASSROOM TEACHING CERTIFICATES
Resources
Texas Education Agency Guidance Documents at: http://ritter.tea.state.tx.us/nclb/hqteachers.html
The Texas State Board for Educator Certification website provides comprehensive information related to educator certification at: http://www.sbec.state.tx.us/SBECOnline/default.asp
The Office of Special Education Programs (OSEP) has a question and answer document located at:
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CTopicalArea%2C2%2C
A series of modules from Building the Legacy: A Training Curriculum on IDEA 2004 created by the National Dissemination Center for Children with Disabilities (NICHY). Module 7 (Highly qualified SPED teachers at:
http://www.nichcy.org/Laws/IDEA/Pages/BuildingTheLegacy.aspx
3. Parent participation in ARD meetings
· Notice – Note that an ARDC meeting may be held without a parent only if alternate means of participation have been offered under 34 CFR 300.328 and detailed records of attempts to convince the parent to attend are kept under 34 CFR 300.322 (d)
· Concerns 300.324 (a)(2)
· Decisions
· Disagreement
· Complaints and Due Process Hearings: A hearing officer must determine that a procedural violation results in a denial of FAPE for a student in order to find against a school district. Regulations at 34 CFR 300.513 (a)(2)(ii) state that FAPE is denied if the procedural violations:
i. Impeded the child’s right to FAPE;
ii. Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the child; or
iii. Caused a deprivation of educational benefit.
Examples of Compliance:
· Notice--early enough (at least 5 school days in advance) written notice for parent to participate. Both parties give input to decision into the time and place (mutually agreed on). Both parties must demonstrate reasonableness; districts can do so by documenting efforts to re-schedule; good faith effort to find out why parents are not attending even with multiple notices and adjusting efforts to involve accordingly. Call first to arrange time; then send Notice. Follow-up to determine why not attending and what alternatives might be helpful—document efforts. The intent of law is parent participation. LEAs must show more than just perfunctory efforts to involve the parent. Document when the parents are not in attendance at the ARD meeting and your offer of other means of participation. Show that you have notified parents, offered different dates, offered to other means of participation such as phone conferences. Timelines: LEAs have less flexibility when deadline is approaching. Document efforts to involve parent, but if fail, meet your timelines and document efforts to involve parent.
· Concerns—Address concerns in the meeting. Conduct ‘meaningful’ discussions regarding the parent concerns. Show “meaningful” by: Documenting how you addressed the concerns and how parents participated in the discussions. Decisions should be made in collaborative manner. If school disagrees with parent after considering parent’s proposal in good faith, document reasons why and benefits of school’s proposal as related to disability and student needs. Document actions taken previously to address concerns and why not taking further action. Offer other means to address parent concerns if not appropriate for ARD discussion e.g., conference with administrator re: teacher selection. Show a good faith effort to understand parent concern, more than perfunctory response.
· Decisions—collaborative manner; no voting; boils down to two parties needing to reach agreement. Document decisions and justify IEP decisions. If school and parent disagreement, document parent’s position and rationale to show discussion did occur in meeting even though LEA proposed different outcome; document LEA’s viewpoint and reasons for supporting an alternate position. Document areas where school and parents in agreement.
· Disagreement—document how parents concerns were addressed and that IEP is to continue until resolved. Adhere to IEP disagreement requirements. If still in disagreement after re-convening, provide 5-days written notice when the district’s IEP will go into effect. Provide notice of due process.
.
· Complaints and Due Process Hearings—Hearing Officer looks for meaningful parent participation re: FAPE, eligibility, IEP development, placement determinations. Document efforts to gain parental participation. Document in-depth to help with defending actions.
·
Bottom line: Demonstrate good faith efforts, not just perfunctory compliance.
Federal Regulation Reference
34 CFR Sec.300.321 (member of IEP Team) and 322 (participation in ARD meetings)
Texas Administrative Code Reference
89.1050 ( c) (1) (A) and (h) (1)
89.1045
4. Parents afforded the opportunity for meaningful participation in eligibility determination and development of the IEP
· Eligibility determined
· Development of IEP CFR300.306
· Determination of Placement – LEAs may make this decision without the parent only if they are unable to convince the parent to attend the meeting and have a record of attempts to ensure parental involvement—34 CFR 300.502 (c)(4). Also note that a draft IEP may be developed with or without the parent in preparation for an ARDC meeting under 300.501 (b)(3), but OSEP urges LEAs to provide draft IEPs to parents before the ARDC meeting under 71 FR Sec.46678.
· Revocation
· Complaints and Due Process Hearings
Examples of Compliance:
“Meaningful”: Difficult because definition is based on parent’s perception of what is meaningful. Ways of showing ‘meaningful’ participation in eligibility determination and development of IEP:
· Accept and thoroughly review parent provided evaluations; document review and acceptance/use of information from outside evaluation reports. Best practice might suggest documenting why LEA is not following recommendations of outside evaluation and recommending something else.
· Provide draft IEPs and copies of reports prior to discussions and decision making.
· Make clear draft IEPs are preliminary recommendations for review and discussion with parents. Draft IEPs are intended to give parents an opportunity to review and be able to engage in full discussion of the proposed IEPs.
· Show parental input by modifying draft IEPs according to parent requests either before or during the meeting, if appropriate. Clearly show which changes or additions were made as a result of parental suggestions either in deliberations or on forms.
· If the parent revokes services, document the parents’ participation during the time prior to the revocation of consent for services.
· Your documentation is important on the front end of this process in regards to building relationships with parents and it is important on the backend if you must defend your actions. You want your documentation to show that you encouraged parents to participate in the decision making in a collaborative process.
·
Federal Regulation References
34 CFR Sec. 300.306 (1)
Texas Administrative Code Reference
89.1011 – referral by parent
Resources
http://www.texasprojectfirst.org/ (Family to Family)
http://www.partnerstx.org/ (PTI Network)
http://ritter.tea.state.tx.us/special.ed/guidance/procsafe.html (Procedural Safeguards and ARD Guide)
http://www.esc9.net/vnews/display.v/ART/2007/05/07/463617dd10fe7 (Region 9 Parent Coordination Leadership)
Also see facilitation info at CADRE’s website: http://www.directionservice.org/cadre/
5. IEP not calculated to provide educational benefit
[34 CFR 300.17, 101, 324, TAC 89.1055] [ Also see Hendrick Hudson Central School District v. Rowley, 458 U.S. 175 (1982)]
1. Although a school district must provide “some educational benefit,” the educational
program must be meaningful. It must be individualized based on performance and need;
it must be administered in the LRE; it must be provided in a collaborative and coordinated
manner by all stakeholders; and, the positive benefits must be demonstrated both
academically and non-academically [Cyprus –Fairbanks ISD v. Michael F,
118 F3d 245 91997)]. In addition, the Educational benefit cannot be a mere modicum or
de minimus. It must be likely to produce progress (in general curriculum), not regression or trivial educational advancement [Houston ISD v. Bobby R., 200 F 3d 341 (2000);
2. IEP and/or statewide assessment not aligned with present levels;
3. Goals, objectives, progress reports not aligned with needs; and
4. (Related) Services not described to be able to determine exact location, duration, and frequency (cannot notate a minimum amount of a required service) [OSEP Determination of State Noncompliance, March 10, 2003, pp. 24-27].
Examples of Compliance:
· Description of present levels of performance detailed and specific enough to demonstrate growth from IEP to IEP.
· Goals and/or objectives show improvement over time; continuation of same goals and objectives over time accompanied with justification; decline in performance and resulting goals and objectives accompanied by explanation, e.g., significant change in health
· How TEKS modified included in ARD packet.
· Progress monitoring and reporting specific and detailed and correlated with how goal/objective is written.
·
6. IEP not implemented as written [34 CFR 300.323]
1. Procedural errors in implementing the student’s IEP provisions [See above Houston ISD v. Bobby R]; and
2. De minimus errors may not result in denial of FAPE, but must still be corrected as noncompliance (See Noncompliance FAQ TEA web resource below).
Examples of Compliance:
· Student’s daily schedule matches IEP Schedule of Services
· Accommodations in general education classroom are provided and documented; examples of modified assignments or tests maintained;
· Contact logs of inclusion support reflect amount and type of services provided as per IEP
· Related service providers’ logs match IEP; LEA has procedures for missed services and logs reflect make-ups according to procedures
· IEP-recommended training for personnel working with the student are provided and documented; maintain agenda and handouts
· Use system for monitoring implementation of IEP
· Use “Promise Lists’ and hold individual accountable for follow through
·
7. Patterns of service and LRE
[34 CFR 300.106, 107, 115-117, and 552; TAC 89.1065, and 89.63]
1. Whether the LEA has taken steps to accommodate a student with disabilities in
regular education environment;
2. Whether the student can gain an educational benefit from regular education;
3. Whether regular education harms the child;
4. Whether educating the child in the mainstream harms other children.
5. Whether there is a Continuum of Alternative Placements (CAP); and
6. Whether placement decisions (including ESY) have been made for administrative convenience or as a pattern of service.
Examples of Compliance:
· Use data to determine whether student can benefit from general education and document review of data in meeting
· Document use of evaluation data, progress monitoring and needs when making placement decisions.
· LEA maintains a continuum of services, e.g., programs on regular campus as well as self-contained campuses when centralizing programs. Have more than one option to address the IEPs.
· LEA maintains a continuum of services and develops placements to meet student needs.
·
Resources
Texas Education Agency Guidance Documents:
OSEP FAQ on Identification and Correction of Noncompliance:
http://ritter.tea.state.tx.us/special.ed/guidance/ and click on “Compliance FAQ”
Legal Framework http://framework.esc18.net/
Least Restrictive Environment analysis: http://fw.esc18.net/frameworkdisplayportlet/ Identify your inquiry and click on Least Restrict Environment.
Related Services – update pending
http://ritter.tea.state.tx.us/special.ed/resources/relserv.html
Standards Based IEPs – update pending
http://ritter.tea.state.tx.us/special.ed/guidance/sbIEP.html
Student Attendance and Accounting Handbook – pg. 84
http://ritter.tea.state.tx.us/school.finance/handbook/index.html
Texas Project FIRST Guidance: Using the ARD/IEP Agenda to Understand the Special Education Process: http://familytofamilynetwork.org/index.html
Transition
http://ritter.tea.state.tx.us/special.ed/guidance/transition.html
http://www.transitionintexas.org/transitionintexas/site/default.asp
Additional resources
A series of modules from Building the Legacy: A Training Curriculum on IDEA 2004 created by the National Dissemination Center for Children with Disabilities (NICHY)
Modules 12-16 discuss Individualized Education Programs (IEPs). These modules can be found at:
http://www.nichcy.org/Laws/IDEA/Pages/BuildingTheLegacy.aspx
Project Forum at National Association of State Directors of Special Education (NASDSE) is a cooperative agreement funded by the Office of Special Education Programs of the U.S. Department of Education. They have produced two documents related to standards based IEPs. These documents can be found at:
http://www.projectforum.org/docs/Standards-BasedIEPs-ImplementationinSelectedStates.pdf
Resources
Texas Education Agency Guidance Documents:
http://ritter.tea.state.tx.us/nclb/hqteachers.html
The Texas State Board for Educator Certification website provides comprehensive information related to educator certification. The website can be found at:
http://www.sbec.state.tx.us/SBECOnline/default.asp
The Office of Special Education Programs (OSEP) has a question and answer document located at:
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CTopicalArea%2C2%2C
A series of modules from Building the Legacy: A Training Curriculum on IDEA 2004 created by the National Dissemination Center for Children with Disabilities (NICHY); Module 7 (Highly qualified SPED teachers) at: http://www.nichcy.org/Laws/IDEA/Pages/BuildingTheLegacy.aspx
Handout compiled from TEA Reference Sheets, Systemic Areas of Noncompliance, Fall 2009