focus on quality: what does it mean to be qualified ses fall 2010 and does it matter to fape?

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Focus on Quality:What Does It Mean To Be Qualified

SES Fall 2010

and Does It Matter to FAPE?

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Overview

1. What Are the Requirements To Be “Qualified” as Special Education Staff?

2. Does FAPE Hinge on Staff Qualifications?

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District Staff Are Presumed To Be Qualified

• Courts are not likely to second guess staff qualifications absent evidence to the contrary

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District Staff Are Presumed To Be Qualified

• What matters is whether the district’s proposed staff is trained to deliver a program “reasonably calculated to confer a meaningful benefit on the child”

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Qualified Special Education Teachers

equalsHighly Qualified Under the NCLB

=

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Highly Qualified Special Education Teachers Under the IDEA

• Bachelor’s degree

• Special ed. credential/internship credential– 9th Circuit invalidated

internship credential 9/27/2010

• No emergency/temporary/provisional credential waivers

• Demonstrated subject matter competence

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• Subject matter competence required in all settings

• No exception for the resource room or learning center

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• New teachers, credentialed on or after July 1, 2002, demonstrate subject matter competence by:– Testing, or– Completion of degrees/coursework

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• Veteran teachers demonstrate competence by:– High, Objective Uniform State Standard

(HOUSS)

Exception: Veteran middle school/high school teacher newly credentialed and hired as special ed. teacher

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We don’t say old – we say Veteran!

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• Flexibility on subject matter competence for special education teachers who:– Teach to alternate achievement standards, or– Teach multiple subjects

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Teaching to Alternate Achievement Standards

• Demonstrate subject matter competence by:– Meeting NCLB requirements, or– Demonstrating appropriate level of subject

matter knowledge

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Teaching Multiple Subjects

• Demonstrate subject matter competence by:– Meeting NCLB requirements, or – New teachers qualifying in one subject matter,

allowed two years for others

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Autism Credentialing

• What is the alternate route?– Mild to moderate special education

teacher, and– Consent to the assignment, and– One year of full-time instruction to students

with autism prior to September 1, 2007, and favorable evaluation/recommendation, or coursework

(Ed. Code, § 44265.1.)

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• Why?– More autistic students in California– Requirement of least restrictive environment– The need for more teachers to be able to

instruct students with autism

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• New Regulations– Effective date: June 26, 2010– Autism Spectrum Disorders (ASD) content is

now included in all revised preliminary Education Specialist Teaching Credential programs in all specialty areas

– Authorizes instructional support to students with autism

(5 C.C.R. § 80048.6(b)(8).)

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Related ServicesPersonnel Qualification

• Not held to NCLB’s “highly qualified” standard

• But still must be qualified!– Can’t be waived on an

emergency, temporary or provisional basis

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Special Education Paraprofessionals in Title I Schools

• For instructional support aides, not personal care

• Standards– Completed at least two years of college– Obtained at least an associate’s degree, and – Meet a rigorous standard of quality through a

formal state or local assessment

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Qualifications for Extended School Year Staff

• Must meet IDEA’s highly qualified teacher requirement

• Just because it is summer does not mean districts can take a “vacation” from the qualification requirements

(Letter to Copenhaver (OSEP 2007).)

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Qualifications for Compensatory Education Staff

• Must meet IDEA’s highly qualified teacher requirement

• For purposes of staff qualifications, treat compensatory education just as you would a regular school program

(Letter to Anonymous (OSEP 2007).)

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Parent Inquiries Regarding Personnel Qualifications

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• Title I schools– Must inform parents of right to request

qualifications of child’s core academic subject teachers and paraprofessionals

– What information must districts share?• Type of state credential or license• Education level and subject area of college

degree(s)

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• Title I schools– Must also provide parents notice if their child

is or will be taught for more than four consecutive weeks by a teacher who is not highly qualified

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• How much should districts share when parents ask questions during the IEP process?

• All schools affected not just Title I schools

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Competing Rights

Parent’s right to participate in IEP decision-making

Staff’s rightto privacy

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• Law on staff’s right to privacy is vague

• No disclosure of records constituting

“an unwarranted invasion of personal privacy”

• Courts balance public interest and private interest

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Commission on Teacher Credentialing

CTC website posts all

teacher’s credentialsand subject matter

authorizations with a

public search feature

by teacher’s last name

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1. Has teacher met state requirements for job?

2. Is teacher under emergency or other temporary status?

3. Teacher’s degrees/certificates/licenses and the field of discipline of each

It is reasonable to provide NCLB information at non-Title 1 schools -

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If parent wants more and staff member agrees to disclosure …

How much is too much?

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When it refused to discuss the “competency” of instructional aides, district denied parent rights

(Paradise (CA) USD (OCR 2006).)

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• OAH found 30 minute discussion of service provider’s qualifications adequate

(Student v. Exeter Union SD;Exeter Union SD v. Student (OAH 2009).)

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So how much is enough?• No bright-line rule• BUT, attitude can make all the difference:

– In Paradise, the district was clearly hostile to any discussion

– In Exeter, IEP team demonstrated willingness to engage in open dialogue

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Practice Pointer

• Do not dismiss parent concerns; allow parents meaningful opportunity for dialogue

• Share public information: credentials, other relevant professional qualifications

• Emphasize that the district would not have hired the employee if he/she were not qualified

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Specifying StaffQualifications on IEPs

• IEPs normally contain no information regarding staff qualifications

• Only indicate staff qualifications if truly necessary for FAPE

(Letter to Dickman (OSEP 2002).)

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Does FAPE hinge on

staff qualifications?

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The Bottom Line

• The bottom line in a due process claim is not whether staff is qualified, but whether staff appropriately implemented the IEP

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Compliance Complaint orDue Process Claim

• Staff appropriately implements IEP but not technically qualified→ Compliance Complaint

• Staff technically qualified but fail to appropriately implement IEP→ Due Process Claim

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The Lack of a “Highly Qualified” Teacher

No right to file for due process

“[N]othing in [the IDEA] shall be construed to create a right of action on behalf of an individual student or class of students for the failure of a particular State educational agency or local educational agency employee to be highly qualified”

(20 U.S.C. § 1401(10(E); 34 C.F.R. §§ 300.18(f) and 300.156(e).)

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Case Example

ISSUE

• Did the District deny FAPE by failing to provide appropriately credentialed personnel?

(Student v. Lake Elsinore USD (OAH 2006).)

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Case Example

FACTS

• Student claimed she was denied FAPE because teacher and speech/language therapist were not properly credentialed

• No evidence regarding the required credentials or whether they met those requirements


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Case Example

RULING

• Whether a teacher holds the proper credential is not within the jurisdiction of a due process hearing

• However, teacher and speech/language therapist possessed sufficient qualifications, and their qualifications did not deny Student FAPE


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Case Example

ISSUE

• Does a district’s failure to provide a highly qualified teacher provide a basis for a due process complaint?

(Prince George’s County Public Schools (MD.SEA 2009).)

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Case Example

FACTS

• Student’s IEP required special education instruction from a special education teacher

• Student’s teacher was absent for a month

• Substitute staff not highly qualified


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Case ExampleRULING

• District failed to assign a highly qualified teacher

• However, the IDEA does not create an individual cause of action for FAPE violations due to the lack of a highly qualified teacher

• No corrective action ordered


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The Lack of a “Highly Qualified” Teacher

Attorney Fees

• Teacher certification may be important for purposes of attorney fees, irrespective of whether the student was denied FAPE

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Case Example

ISSUE

• Does District’s failure to classify a student as autistic result in Parent obtaining prevailing party status, even though ALJ found that Student was provided FAPE?

(Weissburg v. Lancaster SD (9th Cir. 2010).)

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Case ExampleFACTS

• Student qualified for special education as mentally retarded (“MR”)

• Parents disputed his eligibility category because private psychologist determined he was autistic

• Student’s teacher was qualified to teach both students with MR and autism

(Weissburg v. Lancaster SD (9th Cir. 2010).)

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Case ExampleRULING

• Administrative hearing

– Student should have been classified as both MR and autistic, but he was not denied FAPE

• District Court

– Student was not a prevailing party because change in disability classification alone did not materially alter the parties’ legal relationship (Weissburg v. Lancaster SD (9th Cir. 2010).)

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Case ExampleRULING

• Ninth Circuit

– Reversed

– Student’s change in classification gave him legal right to a teacher with an autism certification

– This changed the parties’ legal relationship for purposes of prevailing party status and attorney fees (Weissburg v. Lancaster SD (9th Cir. 2010).)

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The Lack of a Qualified or Properly Trained Teacher

• Issue of staff qualifications may be raised in FAPE claim in a limited context– Teacher’s inability or failure to implement a

student’s IEP due to lack of training/education

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Case Example

ISSUE

• Is a properly credentialed teacher necessary for FAPE?

(San Diego USD v. Student (OAH 2009).)

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Case ExampleFACTS• Parent refused to consent to district SDC for

student with autism

• At hearing, Student contended teachers lacked proper credentials to teach a pupil with autism

• District presented evidence of the proper credentials


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Case ExampleRULING• Teachers held the proper credentials, but

“For purposes of analyzing whether an LEA offered a FAPE, nothing in this Decision constitutes a determination that a teacher must necessarily meet the requirements of Education Code section 44265.1 [teacher assignments to pupils with autism] in order to be qualified to deliver a FAPE to a pupil.”


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Case Example

ISSUE

• Did District deny student FAPE by failing to provide qualified aide?

(Student v. San Bruno Park SD (OAH 2008).)

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Case Example

FACTS• Student required 1:1 services in her behavior

intervention plan (“BIP”)

• Student’s teacher and aides were not qualified or trained regarding BIPs

• Student’s BIP was not implemented but she made some educational progress


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Case Example

RULING• District failed to provide qualified 1:1 aide

services as required by Student’s BIP

• This failure was material, as Student’s behaviors worsened

• A student is not required to show educational harm to prove that she was denied FAPE


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Case Example

ISSUE

• Did teacher’s lack of training result in denial of FAPE?

(Student v. San Jose USD (OAH 2006).)

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Case Example

FACTS• Student was eligible under SLD and required

a reading program to address phonological awareness problems

• Student’s special education teacher was in first year teaching in the United States


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Case Example

FACTS

• Teacher held a “Pre-Intern” certificate and was trained in occupational therapy

• Teacher admitted she did not differentiate her teaching methodologies and that she did not know much about Student’s disability


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Case Example

RULING• Student was denied FAPE • District delegated responsibility for special

education program to novice teacher without providing appropriate training or oversight

• OAH specifically commented that had Student’s IEP been properly implemented it would have conferred FAPE


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Practice Pointer

• Ensure all staff understand their duties and how to perform them

• Train new or inexperienced staff to ensure all IEP services are provided

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When Qualified Teachers Make Mistakes

• Teachers are not held to a standard of perfection

• The Ninth Circuit held that one misjudgment by an otherwise outstanding, highly qualified teacher does not establish that a student was denied FAPE

(B.V. ex rel. J-C.V. v. Dept. of Educ., State of Hawaii (9th Cir. 2008).)

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How To HandleParent Requests

School districts control personnel decisions

• Parent generally has no right to compel an assignment of particular teachers or other educational personnel to implement an IEP

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Case Example

FACTS• Student received home instruction from one

particular home instructor for over half a year • District assigned a different teacher• Parent refused, arguing Student required

consistency and routine• Student had only needed a few weeks to adjust

to the original home instructor

(Student v. Los Angeles USD (OAH 2010).)

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Case Example

RULING

• District was not required to assign parent’s preferred teacher to Student

(Student v. Los Angeles USD (OAH 2010).)

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• Do not write the names of service providers in IEPs

• If parent insists, tell them the district is unable to guarantee a particular person

• However, if necessary to FAPE, specify particular staff qualifications

Practice Pointer

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How To Handle Parent Requests

• There is no “better qualified” or “most qualified” requirement– So long as district staff

is qualified, school districts retain the right to make personnel decisions

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Case ExampleFACTS• The district offered 10 hours of school-based

ABA• Student contended that she required 17 hours of

in-home ABA• Student’s in-home ABA provider had stronger

qualifications than the district’s provider

(Student v. Solana Beach SD; Solana Beach SD v. Student (OAH 2008).)

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Case ExampleRULING• “The fact that the [in-home ABA] providers are

more highly trained, are better at record keeping, and may be better supervised than District staff does not support a conclusion that the District’s program does not meet legal standards”

(Student v. Solana Beach SD; Solana Beach SD v. Student (OAH 2008).)

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Parents as Providers

• No legal requirement that districts hire parents to provide services, even if they are qualified

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Case ExampleFACTS

• District offered a qualified health care assistant (“HCA”)

• Student’s mother held a nurse assistant certification and a health care provider’s certificate

(Los Angeles USD v. Student;Student v. Los Angeles USD (OAH 2007).)

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Case Example

RULING

• The district’s HCA was qualified

• Therefore the district provided FAPE

• Even if Student’s mother were more qualified, no legal authority requires the district to hire and/or pay Student’s mother

(Los Angeles USD v. Student; Student v. Los Angeles USD (OAH 2007).)

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Q & A

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Next up ~ All Things Considered …

Break time!

focus on quality: what does it mean to be qualified ses fall 2010 and does it matter to fape?

Documents

autism slide

special education staff

teacher slide

contrary slide

child slide

center slide

idea subject matter

idea veteran teachers