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1
Focus on Quality:What Does It Mean To Be Qualified
SES Fall 2010
and Does It Matter to FAPE?
2
Overview
1. What Are the Requirements To Be “Qualified” as Special Education Staff?
2. Does FAPE Hinge on Staff Qualifications?
3
District Staff Are Presumed To Be Qualified
• Courts are not likely to second guess staff qualifications absent evidence to the contrary
4
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”
5
Qualified Special Education Teachers
equalsHighly Qualified Under the NCLB
=
6
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
7
Highly Qualified Special Education Teachers Under the IDEA
• Subject matter competence required in all settings
• No exception for the resource room or learning center
8
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
9
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
10
We don’t say old – we say Veteran!
11
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
12
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
13
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
14
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.)
15
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
16
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).)
17
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
18
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
19
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).)
20
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).)
21
Parent Inquiries Regarding Personnel Qualifications
22
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)
23
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
24
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
25
Parent Inquiries Regarding Personnel Qualifications
Competing Rights
Parent’s right to participate in IEP decision-making
Staff’s rightto privacy
26
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
27
Parent Inquiries Regarding Personnel Qualifications
Commission on Teacher Credentialing
CTC website posts all
teacher’s credentialsand subject matter
authorizations with a
public search feature
by teacher’s last name
28
Parent Inquiries Regarding Personnel Qualifications
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 -
29
Parent Inquiries Regarding Personnel Qualifications
If parent wants more and staff member agrees to disclosure …
How much is too much?
30
Parent Inquiries Regarding Personnel Qualifications
When it refused to discuss the “competency” of instructional aides, district denied parent rights
(Paradise (CA) USD (OCR 2006).)
31
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).)
32
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
33
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
34
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).)
35
Does FAPE hinge on
staff qualifications?
36
The Bottom Line
• The bottom line in a due process claim is not whether staff is qualified, but whether staff appropriately implemented the IEP
37
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
38
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).)
39
Case Example
ISSUE
• Did the District deny FAPE by failing to provide appropriately credentialed personnel?
(Student v. Lake Elsinore USD (OAH 2006).)
40
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).)
41
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).)
42
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).)
43
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).)
44
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
(Prince George’s County Public Schools (MD.SEA 2009).)
45
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
46
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).)
47
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).)
48
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).)
49
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).)
50
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
51
Case Example
ISSUE
• Is a properly credentialed teacher necessary for FAPE?
(San Diego USD v. Student (OAH 2009).)
52
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
(San Diego USD v. Student (OAH 2009).)
53
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.”
(San Diego USD v. Student (OAH 2009).)
54
Case Example
ISSUE
• Did District deny student FAPE by failing to provide qualified aide?
(Student v. San Bruno Park SD (OAH 2008).)
55
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).)
56
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).)
57
Case Example
ISSUE
• Did teacher’s lack of training result in denial of FAPE?
(Student v. San Jose USD (OAH 2006).)
58
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).)
59
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).)
60
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).)
61
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
62
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).)
63
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
64
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).)
65
Case Example
RULING
• District was not required to assign parent’s preferred teacher to Student
(Student v. Los Angeles USD (OAH 2010).)
66
• 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
67
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
68
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).)
69
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).)
70
Parents as Providers
• No legal requirement that districts hire parents to provide services, even if they are qualified
71
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).)
72
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).)
73
Q & A
74
Next up ~ All Things Considered …
Break time!