The LEA's Role in Recommending Outside Placements • (3) If neither parent can participate in a meeting in which a decision is to be made relating to the educational placement of their child, the public agency must use other methods to ensure their participation, including individual or conference telephone calls, or video conferencing. 36
The LEA's Role in Recommending Outside Placements • (4) A placement decision may be made by a group without the involvement of a parent, if the public agency is unable to obtain the parent's participation in the decision. In this case, the public agency must have a record of its attempt to ensure their involvement." 37
The LEA's Role in Recommending Outside Placements • Query: – What weight should be afforded to parent input? – What happens when parent input does not align with LEA observations and data? 38
The LEA's Role in Recommending Outside Placements • When considering parent input, delve further into general statements and conclusions (ex., "Rachel is susceptible to bullying due to her disability."): – Ask parents for anecdotes, including from the school setting, and then include in IEP. – Gather and include in IEP all available info from the school setting, as provided by staff. – In considering all of the above, make a determination regarding the student's needs in the school setting, and how this relates to the determination of an appropriate placement. 39
The LEA's Role in Recommending Outside Placements • Ex: Parents tell ABC School District "Rachel is susceptible to bullying because she has Tourette's Syndrome." 40
The LEA's Role in Recommending Outside Placements • ABC asks parents: "Has Rachel been bullied in school in the past ?“ • Parents' answer :"Yes." 41
The LEA's Role in Recommending Outside Placements • ABC should note information provided by parents in the section of the IEP entitled "Parental concerns for enhancing the education of the student.” 42
The LEA's Role in Recommending Outside Placements • ABC should ask for details, and investigate how it was handled, if alleged to have occurred at ABC. 43
The LEA's Role in Recommending Outside Placements • The principal of ABC high school confirms that Rachel was bullied during the school day, at lunch and recess, for a period of two months last year. The bullying policy was followed and no further incidents occurred. The bullying occurred after Rachel directed several non-threatening but bizarre statements toward her peers, which was believed by staff to have been a manifestation of Tourette’s Syndrome. 44
The LEA's Role in Recommending Outside Placements • ABC should note in "How the student's disability affects involvement and progress in the general education curriculum" the fact that Rachel has experienced bullying in school during lunch and recess as a result of the following specific manifestations of her disability, and the fact that this was addressed by ABC. 45
The LEA's Role in Recommending Outside Placements • ABC should note in "Academic, developmental, and functional needs related to student's disability" the fact that Rachel needs additional monitoring, particularly in less structured settings with peers. 46
The LEA's Role in Recommending Outside Placements • IEP should also direct the outside placement to report any bullying incidents to ABC and Parents immediately. 47
The LEA's Role in Recommending Outside Placements • Needs, goals and SDI will also need to address the manifestations of the disability that led to bullying. 48
The LEA's Role in Recommending Outside Placements • ABC should investigate, before recommending an outside placement, the placement’s policies both "on paper" and as currently being implemented (or planned for implementation for the student) to address bullying. 49
The LEA's Role in Recommending Outside Placements • Before recommending Outside Placement A, ABC should investigate and determine that: – there have not been a sufficient number of bullying incidents reported at Outside Placement A in recent (past five?) years to lead to a conclusion that it is a significant problem 50
The LEA's Role in Recommending Outside Placements • Outside Placement A has appropriate policies as written, and as implemented, to address bullying incidents that do occur • Outside Placement A has mechanisms in place to address all of Rachel's needs arising from her disability, including those behaviors which historically led to bullying. 51
The LEA's Role in Recommending Outside Placements • Why do I recommend investigation of the outside placement? 52
The LEA's Role in Recommending Outside Placements • For the same reason that LEAs must fully consider all parent input, and all other relevant factors in a placement decision: • For purposes of liability, the LEA will be held to a "knew or should have known" standard with respect to recommending the appropriateness of a placement. 53
The LEA's Role in Recommending Outside Placements • "Compensatory education is available if the LEA knows or should know that the program is not appropriate or that the student is receiving only trivial educational benefit, and the LEA fails to remedy the problem." M.C. v. Central Regional S.D., 831 F.3d 389 (3rd. Cir. 1996) [emphasis supplied] 54
The LEA's Role in Recommending Outside Placements • The fact that parents agree to an outside placement will not necessarily relieve the LEA of liability when parents file a due process action claiming the placement was inappropriate and seeking compensatory education, if: 55
The LEA's Role in Recommending Outside Placements • This is liability imputed directly to the LEA for its direct role in recommending the placement. Liability will attach if the LEA knew or should have known that the placement was inappropriate, and nonetheless recommended it. 56
The LEA's Role in Recommending Outside Placements – The LEA knew, or should have discovered through reasonable investigation, that the placement was inappropriate for any reason. 57
The LEA's Role in Recommending Outside Placements – This includes not only the programs and services being delivered/not being delivered, but also factors like a pervasive bullying problem and/or lack of appropriate student supervision by staff. 58
The LEA's Role in Recommending Outside Placements – These issues could result in liability in any placement situation, but are of even greater concern when the LEA and/or parents identified prior bullying issues relative to the student. (The fact that prior bullying occurred only outside the school setting could be a helpful defense, but will not necessarily exonerate the LEA from liability.) 59
The LEA's Role in Recommending Outside Placements • Back to the hypothetical: – Parents' answer as to whether bullying has occurred in school: "No. Her classmates at school seem pretty accepting, but her Tourette's Syndrome has caused her to blurt out some unusual things at dancing school and at summer horseback riding camp, and she has been verbally taunted in both of those places as a result." 60
The LEA's Role in Recommending Outside Placements • ABC should note in "Parental concerns for enhancing the education of the student" the following: – Parents reported that Rachel has been verbally taunted by peers during non-school sponsored activities. 61
The LEA's Role in Recommending Outside Placements • ABC should also note in "Academic, developmental, and functional needs related to student's disability" the following: 62
The LEA's Role in Recommending Outside Placements • Although parents report that Rachel has experienced bullying outside of the school setting as a result of her disability, this has not been observed by ABC personnel or reported by anyone else as occurring within the school setting. Nonetheless, it is recommend that Outside Placement A staff observe Rachel carefully, particularly in unstructured settings with peers, and report any potential bullying incidents to ABC and Parents immediately. 63
The LEA's Role in Recommending Outside Placements • ABC should also investigate and confirm that: – there have not been a sufficient number of bullying incidents reported at Outside Placement A in recent (past five?) years to lead to a conclusion that it is a significant problem – Outside Placement A has appropriate policies as written, and as implemented, to address bullying incidents that do occur 64
The LEA's Role in Recommending Outside Placements • Summary: Key points in drafting IEPs in which an outside placement is recommended: 65
The LEA's Role in Recommending Outside Placements • Document all input provided by parents and LEA staff. 66
The LEA's Role in Recommending Outside Placements • Dig more deeply into conclusory statements from any member of the team indicating that the placement would or would not be appropriate for the student. ("What have you observed, and when/where did you observe it?") 67
The LEA's Role in Recommending Outside Placements • Perform due diligence to ascertain whether the placement is generally safe and adheres to appropriate policies and procedures. 68
The LEA's Role in Recommending Outside Placements • Perform due diligence to ascertain whether the placement is appropriate for this student, in terms of not only services and programming, but also the overall environment. 69
The LEA's Role in Recommending Outside Placements • If a parent concern has not manifested itself in the school setting, it probably does not need to be a reason to recommend/refrain from recommending a placement (although disagreements among the team on this issue could lead to a due process filing to determine the appropriate placement before the student is placed, or allegations after placement that parents’ input was not sufficiently considered.) 70
The LEA's Role in Recommending Outside Placements • Nonetheless, the LEA will be best positioned to defend itself if it investigates the way in which the issue would be addressed at the outside placement and notes the issue at least in "Parental concerns for enhancing the education of the student," and possibly also under “Needs,” so as to make the outside placement aware. 71
The LEA's Role in Recommending Outside Placements • Pennsylvania Department of Education Basic Education Circular, Instruction in the Home (Revised June 30, 2005): – "Instruction conducted in the home is included in the definition of special education located in the federal regulations (34 CFR § 300.39(a)(i)) and is recognized as a placement option on the continuum of alternative placements for students with disabilities (34 CFR § 300.115). 72
The LEA's Role in Recommending Outside Placements • Instruction in the Home vs. Homebound Instruction 73
The LEA's Role in Recommending Outside Placements – "The use of instruction conducted in the home is restricted to students whose needs require full-time special education services and programs outside the school setting for the entire day. Ordinarily, these will be students who, because of a severe medical condition or mobility impairment, are unable to leave home to attend school. 74
The LEA's Role in Recommending Outside Placements – "Although a student placed by his or her Individualized Education Program (IEP) team on instruction conducted in the home does not receive his or her program in the school setting, he or she remains entitled to a free appropriate public education equal to his or her non-disabled peers, unless this amount of instruction would jeopardize the child's health or welfare. 75
The LEA's Role in Recommending Outside Placements – "In such cases, the IEP team can agree on fewer hours of instruction so long as the student still receives a free appropriate public education. [emphasis supplied] 76
The LEA's Role in Recommending Outside Placements – "In all circumstances involving the placement of a student on instruction conducted in the home, the districts and charter schools must electronically report students with disabilities to the Department within five 5 days of the placement. Districts and Charter schools must use the web-based reporting system. 77
The LEA's Role in Recommending Outside Placements – "Instruction conducted in the home is not an appropriate option in other situations [i.e., when child could otherwise leave home], such as when a district or charter school is experiencing difficulty in arranging the program or placement that a student requires. In such cases, the district or charter school should continue to serve the student in accordance with his or her IEP while taking steps to promptly arrange for the services that the student requires. These steps may include seeking assistance from the Department or from other child-serving agencies involved with the student. [emphasis supplied] 78
The LEA's Role in Recommending Outside Placements – "Although instruction conducted in the home is not ordinarily permitted when the student has no condition preventing him or her from leaving the home, there are occasional, exceptional cases in which the parents and the district or charter school agree to instruction conducted in the home as a short-term option. In these cases, the district or charter school must report not less than weekly to the Department utilizing the web- based reporting system. The district or charter school are also responsible for informing the Department when the short-term placement has concluded." [emphasis supplied] 79
The LEA's Role in Recommending Outside Placements • Example: Due to a severe medical condition, Rachel's IEP says she needs to be accompanied at all times by a specialized nurse in order to be educated at School District D, which has been determined to be the LRE. Rachel's nurse dies unexpectedly, and School District D is having a difficult time securing a replacement. 80
The LEA's Role in Recommending Outside Placements • Rachel's condition does not truly prevent her from leaving the home, provided that she has the needed nursing care to support her. 81
The LEA's Role in Recommending Outside Placements • NOREP must reflect other options considered and reasons for rejection. • Therefore, School District D should contact other placements which may have specialized nurses on staff, inquire about availability to educate student on short term basis, and offer same to Parents. 82
The LEA's Role in Recommending Outside Placements • Back to the BEC: • “'Instruction conducted in the home,' which is listed in the continuum of special education alternative placements in federal regulations, should not be confused with 'homebound instruction,' which describes the instruction a district or charter school may provide when a student has been excused from compulsory attendance under 22 Pa. Code § 11.25 due to temporary mental or physical illness or other urgent reasons .“ [emphasis supplied] 83
The LEA's Role in Recommending Outside Placements • Key Elements of School District D's Obligations: – Work diligently to arrange nursing services in the LRE. – Communicate and document efforts. – If not successful, obtain parental consent through a NOREP for short term instruction in home. 84
The LEA's Role in Recommending Outside Placements • Placing a special education student on homebound because he or she cannot otherwise leave home while awaiting arrangements to facilitate education in the LRE is not appropriate. 85
The LEA's Role in Recommending Outside Placements • Instruction in the home is a placement designed to provide FAPE, with the same amount of instructional hours (or fewer, if agreed to by parents) as would be provided in the LRE. The IEP must be implemented, including any SDI that can be implemented at home, and progress monitoring on goals. 86
The LEA's Role in Recommending Outside Placements 22 Pa Code Section 11.25 • Homebound instruction: “§ 11.25. Temporary excusals due to illness or other urgent reasons. (a) A principal or teacher may, upon receipt of satisfactory evidence of mental, physical or other urgent reasons, excuse a student for nonattendance during a temporary period, but the term ‘‘urgent reasons’’ shall be strictly construed and does not permit irregular attendance. A school district shall adopt rules and procedures governing temporary excusals that may be granted by principals and teachers under this section. Temporary excusals may not exceed 3 months. 87
The LEA's Role in Recommending Outside Placements • “( b) A school district, area vocational technical school, charter or independent school may provide students temporarily excused under this section with homebound instruction for a period not to exceed 3 months. A school district, area vocational technical school, charter or independent school may request approval from the Department to extend the provision of homebound instruction, which shall be reevaluated every 3 months. When a student receives homebound instruction, the student may be counted for attendance purposes as if in school. A school district shall be reimbursed for homebound instruction provided to a student under section 2510.1 of the Public School Code of 1949 (24 P. S. § 25-2510.1). 88
The LEA's Role in Recommending Outside Placements • “( c) A school district shall adopt policies that describe the instructional services that are available to students who have been excused under this section. The policies must include statements that define the responsibilities of both the district and the student with regard to these instructional services. 89
The LEA's Role in Recommending Outside Placements • The BEC: – "Even though homebound instruction is not a special education placement option for students with disabilities, there are occasions when a student with a disability may receive homebound instruction due to a temporary excusal from compulsory attendance in the same manner as the student's non-disabled peers." 90
The LEA's Role in Recommending Outside Placements • Homebound instruction is not a change in placement. However: – "If the temporary condition that precipitated the excusal from attendance for a student with disabilities results in a change in the student's need for specially designed instruction, districts and charter schools may need to reevaluate the student. Districts or charter schools may also need to reconvene the student's IEP team to determine whether it is necessary to revise the IEP and change the student's placement to instruction conducted in the home. 91
The LEA's Role in Recommending Outside Placements – "Moreover, the district or charter school may be responsible for providing compensatory education to the student for the interruption in services if the district or charter school did not provide a free appropriate public education." 92
The LEA's Role in Recommending Outside Placements • LEA must ensure the individual providing instruction in the home (or homebound instructions) is appropriately trained and monitored. S.Z. v. Pocono Mountain S.D., ODR# 2007/10-11-KE – Do not neglect related services – Physical therapy requires a doctor's prescription. It is the parents' responsibility to obtain. This is not the case for speech therapy, occupational therapy, vision therapy. M.L. v. Lower Merion S.D., ODR #17597/15-16 KE 93
The LEA’s Role in IEP Meeting • Attendance at IEP meetings: – LEA holds the IEP meeting for students at all outside placements besides approved private schools (APSs.) – When an APS hosts an IEP meeting, it is strongly recommended that one or more LEA representatives participate for the entire IEP meeting, in person if possible. 94
The LEA’s Role in IEP Meeting – At a minimum, the LEA representative should have a copy of the entire IEP in front of him/her when participating in the IEP meeting hosted by the APS. – LEA must never allow an individual who did not participate in an IEP meeting to sign the IEP. 95
The LEA’s Role in IEP Meeting – Except when an APS is hosting the IEP meeting, the LEA must send and retain copies of invitations sent to all members of the IEP team, including all personnel from the outside placement. 96
The LEA’s Role in IEP Meeting • Who must participate? 97
The LEA’s Role in IEP Meeting • § 300.321 IEP Team. “( a) General. The public agency must ensure that the IEP Team for each child with a disability includes — (1) The parents of the child; (2) Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment); (3) Not less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child; 98
The LEA’s Role in IEP Meeting (4) A representative of the public agency who — (i) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; (ii) Is knowledgeable about the general education curriculum; and (iii) Is knowledgeable about the availability of resources of the public agency. 99
The LEA’s Role in IEP Meeting (5) An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in paragraphs (a)(2) through (a)(6) of this section; 100
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