SES Fall 2010
Focus on Quality:
What Does It Mean To Be Qualified
and Does It
Matter to FAPE?
Overview
1. What Are the Requirements To Be
“Qualified” as Special Education Staff?
2. Does FAPE Hinge on Staff
Qualifications?
2
District Staff Are
Presumed To Be Qualified
• Courts are not likely
to second guess
staff qualifications
absent evidence to
the contrary
3
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”
4
Qualified Special Education Teachers
equals
Highly Qualified Under the NCLB
=
5
Highly Qualified Special Education
Teachers Under the IDEA
• Bachelor’s degree
• Special ed.
credential/internship
credential
• No emergency/
temporary/provisional
credential waivers
• Demonstrated subject
matter competence
– 9th Circuit invalidated
internship credential
9/27/2010
6
Highly Qualified Special Education
Teachers Under the IDEA
• Subject matter competence required in all
settings
• No exception for the resource room or
learning center
7
Highly Qualified Special Education
Teachers Under the IDEA
• New teachers, credentialed on or after
July 1, 2002, demonstrate subject matter
competence by:
– Testing, or
– Completion of degrees/coursework
8
Highly Qualified Special Education
Teachers Under the IDEA
• 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
9
We don’t say old – we say Veteran!
10
Highly Qualified Special Education
Teachers Under the IDEA
• Flexibility on subject matter competence
for special education teachers who:
– Teach to alternate achievement standards, or
– Teach multiple subjects
11
Highly Qualified Special Education
Teachers Under the IDEA
Teaching to Alternate Achievement Standards
• Demonstrate subject matter competence
by:
– Meeting NCLB requirements, or
– Demonstrating appropriate level of subject
matter knowledge
12
Highly Qualified Special Education
Teachers Under the IDEA
Teaching Multiple Subjects
• Demonstrate subject matter competence
by:
– Meeting NCLB requirements, or
– New teachers qualifying in one subject matter,
allowed two years for others
13
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.)
14
Autism Credentialing
• Why?
– More autistic students in California
– Requirement of least restrictive environment
– The need for more teachers to be able to
instruct students with autism
15
Autism Credentialing
• 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).)
16
Related Services
Personnel 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
17
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
18
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).)
19
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).)
20
Parent Inquiries Regarding
Personnel Qualifications
21
Parent Inquiries Regarding
Personnel Qualifications
• 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)
22
Parent Inquiries Regarding
Personnel Qualifications
• 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
23
Parent Inquiries Regarding
Personnel Qualifications
• How much should districts share when
parents ask questions during the IEP
process?
• All schools affected not just Title I schools
24
Parent Inquiries Regarding
Personnel Qualifications
Competing Rights
Parent’s right to
participate in IEP
decision-making
Staff’s right
to privacy
25
Parent Inquiries Regarding
Personnel Qualifications
• 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
26
Parent Inquiries Regarding
Personnel Qualifications
Commission on Teacher Credentialing
CTC website posts all
teacher’s credentials
and subject matter
authorizations with a
public search feature
by teacher’s last name
27
Parent Inquiries Regarding
Personnel Qualifications
It is reasonable to provide NCLB information
at non-Title 1 schools 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
28
Parent Inquiries Regarding
Personnel Qualifications
If parent wants more and staff member
agrees to disclosure …
How much is too much?
29
Parent Inquiries Regarding
Personnel Qualifications
When it refused to discuss the “competency”
of instructional aides, district denied parent
rights
(Paradise (CA) USD (OCR 2006).)
30
Parent Inquiries Regarding
Personnel Qualifications
• OAH found 30 minute discussion of
service provider’s qualifications adequate
(Student v. Exeter Union SD;
Exeter Union SD v. Student (OAH 2009).)
31
Parent Inquiries Regarding
Personnel Qualifications
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
32
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
33
Specifying Staff
Qualifications on IEPs
• IEPs normally contain no
information regarding
staff qualifications
• Only indicate staff
qualifications if truly
necessary for FAPE
(Letter to Dickman (OSEP 2002).)
34
Does FAPE
hinge on
staff
qualifications?
35
The Bottom Line
• The bottom line in a due process claim is
not whether staff is qualified, but whether
staff appropriately implemented the IEP
36
Compliance Complaint or
Due Process Claim
• Staff appropriately implements IEP but not
technically qualified
→ Compliance Complaint
• Staff technically qualified but fail to
appropriately implement IEP
→ Due Process Claim
37
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).
38
Case Example
ISSUE
• Did the District deny FAPE by failing to
provide appropriately credentialed
personnel?
(Student v. Lake Elsinore USD (OAH 2006).)
39
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
(Student v. Lake Elsinore USD (OAH 2006).)
40
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
(Student v. Lake Elsinore USD (OAH 2006).)
41
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).)
42
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
(Prince George’s County Public Schools (MD.SEA 2009).)
43
Case Example
RULING
• 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
(Prince George’s County Public Schools (MD.SEA 2009).)
44
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
45
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).)
46
Case Example
FACTS
• 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).)
47
Case Example
RULING
• 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).)
48
Case Example
RULING
• 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).)
49
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
50
Case Example
ISSUE
• Is a properly credentialed teacher
necessary for FAPE?
(San Diego USD v. Student (OAH 2009).)
51
Case Example
FACTS
• 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
(San Diego USD v. Student (OAH 2009).)
52
Case Example
RULING
• 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.”
(San Diego USD v. Student (OAH 2009).)
53
Case Example
ISSUE
• Did District deny student FAPE by failing
to provide qualified aide?
(Student v. San Bruno Park SD (OAH 2008).)
54
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
(Student v. San Bruno Park SD (OAH 2008).)
55
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
(Student v. San Bruno Park SD (OAH 2008).)
56
Case Example
ISSUE
• Did teacher’s lack of training result in
denial of FAPE?
(Student v. San Jose USD (OAH 2006).)
57
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
(Student v. San Jose USD (OAH 2006).)
58
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
(Student v. San Jose USD (OAH 2006).)
59
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
(Student v. San Jose USD (OAH 2006).)
60
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
61
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).)
62
How To Handle
Parent 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
63
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).)
64
Case Example
RULING
• District was not required to assign
parent’s preferred teacher to Student
(Student v. Los Angeles USD (OAH 2010).)
65
Practice Pointer
• 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
66
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
67
Case Example
FACTS
• 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).)
68
Case Example
RULING
• “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).)
69
Parents as Providers
• No legal requirement that districts hire
parents to provide services, even if they
are qualified
70
Case Example
FACTS
• 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).)
71
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).)
72
Q&A
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Break time!
Next up ~ All Things Considered …
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