Special Education
Patricia R. Andrews
Andrews & Price
History
1972-PARC Consent Decree Challenged the
education of mentally retarded students in
PA
Agreement to provide educational services to
all children
 Established 1st due process hearings to
challenge program
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Hearings very simply
 Districts usually prevailed
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History
1975 – Public Law 94-142
Modeled after the PA scheme
 No major changes for PA
 Hearings more complex
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New issues
 Advocates
 Some lawyer involvement
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History
1986 – Smith v. Robinson
U.S. Supreme Court Case
 Held no attorney’s fees available for prevailing
parties under P.L. 94-142
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History
1988 – Protection for All Handicapped
Children Act
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94-142 amended to provide for attorney’s fees
for prevailing party
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Only for parents
No meaningful substantive changes
 Parent lawyers now come on scene
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More complex and longer hearings
Major cases
Amy Rowley v. Hendrick Hudson S.D.
Deaf student requesting an interpreter as part of
educational program
 Holding:
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Substantive: children are only entitled to an
appropriate, not best, program
 Procedures: cannot have substantively appropriate
program if procedures not followed
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Major cases
Oberti
Down Syndrome child requesting inclusion in
the regular education environment
 IDEA adopts the Court’s decision
 Holding: Children are entitled to be educated
in the least restrictive environment

Children educated with nondisabled peers to
maximum extent appropriate
 Must provide supplementary aides and services to
allow inclusion to be satisfactorily achieved
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Major Cases
Gaskins Consent Decree
In the process of being finalized
 Emphasizes requirement of IEP Team to
appropriately consider LRE before making
placement determinations
 Monitored by PDE
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Major cases
W.B. v. Matula
Third Circuit
 Holding: school districts can be liable for
monetary damages as well as compensatory
damages
 Every other circuit has held the opposite
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History
1997-IDEA
1st meaningful substantive changes in 22 years
 Reauthorization finalized in 2004
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Effective July 1, 2005
IDEA
Incorporates the holdings of PARC, Rowley,
Oberti
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School must identify all children with disabilities and
provide FAPE
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FAPE is an individualized education program designed to meet
the needs of the child that is reasonably calculated to provide
meaningful educational benefit
Procedures must be followed
Education must be in the least restrictive environment
Parents have due process rights
IEP Team
The IEP Team is the decision maker under
IDEA
Responsible for developing, reviewing and
revising an IEP
 There are no individual decisions

Required Members of the IEP
Team
IEP Team includes
Parents
 At least 1 regular education teacher of the child
 At least 1 special education teacher of the child
 LEA
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Qualified to provide or supervise the provision of
SDI; is knowledgeable about the general curriculum;
is knowledgeable about the availability of resources
of the public agency
IEP TEAM ATTENDANCE
An IEP team member shall not be required
to attend all or part of the IEP meeting if the
parent in writing and the LEA agree that the
team member’s attendance is not necessary
because the member’s area of the
curriculum or related services is not being
modified or discussed at the meeting
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DOCUMENT!
IEP TEAM ATTENDANCE
An IEP team member may be excused from
attending all or part of the IEP meeting when the
meeting involves a modification to or discussion
of the member’s area of the curriculum or related
services if the parent in writing and the LEA
consent to the excusal and the member submits,
in writing to the parent and Team input into the
development of the IEP prior to the meeting
IEP TEAM ATTENDANCE
Is this really helpful?
This provision requires written documentation
– do not forget this step – cannot just leave!
 Does this take more time than just attending the
meeting itself?
 RECOMMENDATION: As a general rule, the
required members of the Team should be
present throughout the meeting – this provision
should be the exception to the rule.
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AMENDING THE IEP
Changes after the annual IEP meeting:
Parent and LEA may agree not to convene an
IEP meeting
 Instead may develop a written document to
amend or modify the current IEP
 Can still hold a full team meeting
 Parent shall be provided with the revised
document
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AMENDING THE IEP
RECOMMENDATION:

Too many pitfalls:
Must document the agreement – takes time
 Are all teachers notified of changes?
 Are parents truly aware that a change is being made
to the IEP?
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GENERAL RULE: Hold the IEP Team
meeting! This should be the exception to the
rule.
AMENDING THE IEP
Changes can be made by amending the IEP
rather than by redrafting the entire
document.
Document this clearly to avoid confusion
 Provide parent with a copy of the changes
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IMPLEMENTATION
Once IEP is agreed to, must be
appropriately implemented

IEP is a legally binding agreement

IEP Team agreed that the items in the IEP are the
required special education services to provide child
with FAPE
Entire IEP must be followed
 Cannot chose “portions” of IEP to implement
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As the LEA – must monitor implementation
“Why should I care?”
Extreme-Doe v. Withers-Teacher held personally
liable for money damage for failing to implement
the IEP. (School insurance did not cover him).
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This teacher actively refused to implement the specially
designed instruction even after administration cited
him.
Court reasoned that this was sufficiently egregious
conduct to defeat claims of immunity.
Jury returned verdict against high school teacher for
$5,000.00 compensatory and $10,000.00 punitive.
Why Should I Care?
Discipline - 24 P.S. § 11-1122
Incompetency
 Unsatisfactory Rating
 Persistent negligence in the performance of
duties
 Willful neglect of duties
 Failure to follow District Policy or
Administrative directives
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Understanding LRE
“Children placed in special education are
general education children first”
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President’s Commission on Excellence in
Special Education
Understanding Least Restrictive
Environment
Inclusion is not a legal term-LRE is the law.
Legal mandate that disabled children should
be educated, to the maximum extent
appropriate, with their nondisabled peers.
Presumption is that children with
disabilities are to be educated in regular
classes.
LRE
Shift in emphasis!
Prior to 1997 IEP explained the extent a
child would be able to participate in reg. Ed.
now an IEP must explain the extent the
child will not be placed in regular ed. and
why.
LRE
Determination of educational placement made by
the IEP Team – including the parents!
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At least annually
Team must assure that child is removed from
regular education environment only if the nature
or severity of the disability is such that education
in regular classes with the use of supplementary
aides and services cannot be achieved
satisfactorily
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Is the child making progress?
Prior Written Notice
A NOREP must be issued to the parents if
The District proposes to initiate or change the
educational placement of a child with a
disability
 Parents must agree, on the NOREP before a
change of placement can occur
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Verbal consent is not sufficient
CANNOT CHANGE UNILATERALLY!
Why Should I Care?
Little Mistakes Lead to Big Problems
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Due Process
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Damages
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Time Consuming
Adversarial
Compensatory education
Tuition reimbursement
Money
Discipline
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In the job and personally
Why Should I Care?
Avoid problems by following IDEA’s
procedures
Remember: IEP Team makes all final decisions
 Remember: Parents part of Team
 Remember: Obtain parental consent through a
NOREP for every change – no matter how
small
 Remember: IEP must be fully implemented
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