Update on Oregon Bills

Dear Readers,

I was dismayed to read today's press release from State Superintendent Susan Castillo reporting that ODE's "mandate relief" bill, SB 800, passed the House of Representatives and is headed to Governor Kitzhaber for signature.  SB 800 is a housekeeping measure that sweeps away old requirements, like the requirement to teach about the Irish Potato Famine.  At the same time, the Oregon Legislature is quickly passing new special education requirements that surpass what is required by federal law and current state law.  If we were in a time of economic abundance, one could understand expanding entitlements.  But we are in a time of economic retrenchment, and each new requirement means taking something away from a different educational priority.

Here is the status of the bills I previously described:

HB 2283 - Transition services - passed the Senate on Monday and is headed to Governor Kitzhaber.  This bill appears to create several procedural and substantive requirements that exceed federal and current state law.

HB 2296 - Burden of proof - stalled in the House Revenue Committee. May 23 was the deadline for policy committee chairs to schedule work sessions for second chamber measures, so this bill is not going anywhere.

HB 2299 - Charter school bill - public hearing and possible work session in Senate Education Committee on Thursday, 5/26, at 1 pm.

HB 2939 - Seclusion & restraint - work session in the Senate Education Committee today (stay tuned for more information).

June 1 is the deadline for second chamber policy committees to move bills to the floor.  Most likely more requirements will emerge from this session than were swept away by SB 800.

Suzy

Special Education Bills Pending in the Oregon Legislature

My son turned 26 last week.  When he was in kindergarten, Ballot Measure 5 brought us a property tax limitation and a legislative commitment to find an alternative funding mechanism for our public schools.  His 13 years of public education was characterized by a steady erosion of programs and services.  It has been 21 years, and our state legislature has repeatedly failed to establish a stable, multi-faceted funding base for schools.  We are now less than two months from the end of the current legislative session, and the big school funding issues are not even on the table.  My proposal would be to put a moratorium on all new state education legislation until the funding issue has been resolved.  Here is a list of some of the bills now pending in the Oregon Legislature  If you have concerns about any of these bills, it is not too late to communicate with your legislator.

HB 2939- Seclusion & restraint:  This bill for the most part parallels current state regulations but adds significant school district public reporting requirements, including detailed demographic data on use.  For large districts, this will require creating a new electronic data collection system.  No additional state funds are allocated for this purpose.  The bill passed the House and is pending in the Senate Education and Workforce Development Committee with another hearing/work session scheduled for May 17, 2011.

  

HB 2283 - Transition programs, Diploma options, etc.:  This bill has multiple provisions but the most impactful to school districts is a requirement to "make available" a full school day transition program to 18-21 year olds.  These students have typically already completed four years of high school.  Several districts in Oregon have moved to an adult education model for their transition programs as both more age appropriate and collaborative with other adult service agencies.  This bill would require IEP teams to give parents/adult students annual notice (acknowledged by the parent/adult student) of the district's obligation to make available a full school day of transition services, and if the IEP team decides that a lesser amount is appropriate, to include a rationale on the IEP itself.  This bill passed the House, and is headed to the Senate floor with a "do pass" recommendation from the Senate Education Committee.

  

HB 2296 - Burden of proof in special education due process hearings:  This bill would shift the burden of proof to school districts except that the parent would have the burden of proof related to a parent's request for tuition reimbursement for services provided by a private entity as a result of a parent's unilateral placement.  This bill went to the House floor with a "do pass" recommendation from the House Education Committee, where it was assigned to the House Revenue Committee.

  

HB 2299 - Charter school students eligible for special education:  Under current Oregon law, the resident school district continues to be responsible for providing special education and related services to students attending an out-of-district charter school.  This bill would assign responsibility for special education and related services to "the school district in which the charter school is located", including responsibilities for "child find" and detailed notice requirements to the parents (which must be acknowledged) and resident school district.  Further, the school district where the charter school is located must implement the student's current IEP until a new IEP is developed.  The bill does not address what happens if the charter school does not have an appropriate program to implement the student's IEP.  The bill passed the House and is pending in the Senate Education Committee with a hearing/work session scheduled for May 17, 2011.

Case of the Month: Tuition reimbursement & "balancing the equities"

Forest Grove School District v. T.A. (9th Circuit, 4/27/11) (Forest Grove II)

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In the continuing saga of this Oregon tuition reimbursement case, the 9th Circuit recently upheld the lower court's decision that the Forest Grove school district was not required to reimburse the parents for private tuition at a residential school based on a balancing of the equities.  The court found, among other things, that the primary purpose for the parents' private placement of the student was because the student was running away from home, using illegal drugs, and engaging in other unsafe behaviors.  Most of the opinion is spent disagreeing with Judge Graber's lengthy dissent.  (Judge Graber recently authored an opinion awarding private tuition reimbursement in C.B. v. Garden Grove, (9th Cir. 3/28/11) although the private program could not implement all of the components of the student's IEP.)

Forest Grove ceased being about T.A. years ago.  What was at stake in this decision was reimbursement for the parent's attorney fees should the parents prevail - many times more than the amount of the original tuition.  In a nod to more recent developments, Forest Grove High School has recieved recognition for its continuing progress in closing the achievement gap.  That is the real story that needs to be told.

Jan. 2011: Intellectual Disability vs. Mental Retardation

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ A school psychologist recently asked me a good question:  Must a medical statement for a student considered for mental retardation eligibility state that the student has mental retardation?  Under Oregon regulations, no.  The purpose of the medical statement is to "indicate whether there are any sensory or physical factors that may be affecting the child's educational performance."  In other words, the purpose of the medical statement is to rule out other explanations for the student's delay, not to "diagnose" mental retardation.  And, while we're on this topic, on October 5, 2010, President Obama signed "Rosa's Law" which changed all of the references in IDEA and other federal statutes from "mental retardation" to "intellectual disability", a movement consistent with the trend in the mental health/developmental disability community.  The law does not require states to change terminology in state law, but many states are moving in this direction.  For more background, read this blog.

Jan. 2011: What IEP is implemented for a transfer student?

Marshall v. Monrovia SD  (9th Cir., Dec. 15, 2010) ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ A very severely developmentally disabled student attended a virtual charter school in California.  After several years of an IEP that called for independent study/home instruction, the charter school and the parent agreed to an IEP that placed the student in a general education third grade classroom full time.  This IEP was not implemented as the parent immediately enrolled the student in a neighborhood school. A receiving district of a student on an IEP must provide FAPE, including services comparable to those on the student's IEP.  The receiving district concluded that it would implement the last implemented IEP for the student, not the new IEP that was never implemented.  The administrative law judge and the Ninth Circuit agreed, stating: "providing services in accordance with the previously implemented IEP effectuates the statute's purpose of minimizing disruption to the student while the parents and the receiving school resolve disagreements about proper placement."  The court also agreed that the district's offer of FAPE with placement in a special class was the least restrictive environment appropriate for the student.

January 2011: Repeated suspensions & "no pattern" decision

East Metro Integration District  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~    A recent Minnesota state complaint illustrates how the "no pattern" rule applies.  A 10thgrade student with a specific learning disability was suspended in October for 4.5 days and in December for 3 days, both for theft.  On the last day of school before winter break, the student was suspended for possession of a weapon, pending completion of an investigation.  This suspension continued for the first 8 days after winter break, for a total of 16.5 days of suspension during the school year.  The student then enrolled in another school district. Was the district required to hold a manifestation determination meeting before the 11thday of suspension?  Here, the Minnesota Department of Education said "no" because the behaviors were not substantially similar (weapon vs. theft), so there was no "pattern" so no manifestation determination meeting was required.  Of course, determining "pattern" also requires looking at the total number of days of removal and the proximity of the removals to one another.  MDE apparently concluded that the total number of days and proximity of days did not fall over the "pattern" line.  This is consistent with the general opinion that "no pattern" is justifiable up to about 17-18 days in a school year as long as those days are not too close together.  The MDE stated that it would inform the current district that a manifestation determination meeting would be required before any further suspensions during the school year.  Why?  Because the "no pattern" exception buys a very few number of extra days over ten, and those extra days had now been used up by the previous school district.  This means that if the team at the new school concludes that the student's behavior IS a manifestation of the student's disability, the new school district may not suspend or expel the student for that behavior.  The school could still implement a 45 day removal but only for drugs, weapons, or serious bodily injury.

Nov-Dec 2010: Rights of Noncustodial Parents

Issue of the Month:  The Rights of Noncustodial Parents in the Special Ed Process ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~   I recently helped a district sort out the respective parent rights of a custodial father, noncustodial mother and a person who was supposedly the biological father.  Luckily, Oregon had two due process hearings in 2004, DP 04-101 and DP 04-111, that provided some guidance in this area.  To summarize: 1.  Noncustodial parents must be afforded the same opportunity for notice of IEP and placement meetings (and other special education meetings) as custodial parents.  2.  A noncustodial parent must be afforded the opportunity to attend and participate in IEP and placement meetings, to the extent compatible with any court orders.  3.  The noncustodial parent has the right to express concerns and have his or her information considered in developing and reviewing the child's IEP.  The parent may provide information regarding the strengths of the child and concerns for enhancing the child's IEP, and participate in discussions about the child's need for special education and related services.   4.  A district may terminate the noncustodial parent's participation if the parent persists, after reasonable warnings, in making negative comments about staff and the custodial parent.  5.  The noncustodial parent does not attend the IEP meeting or other school meetings as one of the decision-makers.  It is the custodial parent's opinion that is sought in determining whether the team has reached consensus at the IEP meeting, and the custodial parent's consent that is requested when consent is required.  6.  Noncustodial parents do not have the right to request specially scheduled IEP meetings as a custodial parent would.  7.  Noncustodial parents do have the right to prior written notice of special education action based on decisions made at the meeting. 8.  Noncustodial parents do have the right to have access to confidential school records about the student.   9.  Noncustodial parents do have the right to be regularly informed of the student's progress (IEP progress reports,report cards).  Note:  The scope of a noncustodial parent's authority depends on state law, so school districts outside of Oregon should check their own state's rules on this issue.