Focus on Quality: What Does It Mean To Be Qualified

1
Focus on QualityWhat 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 districts proposed
  staff is trained to deliver a program reasonably
  calculated to confer a meaningful benefit on the
  child

5

• Qualified Special Education Teachers
• equals
• Highly Qualified Under the NCLB

6
Highly Qualified Special Education Teachers Under
the IDEA

• Bachelors 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 dont 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 NCLBs highly qualified standard
• But still must be qualified!
• Cant 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 associates degree, and
• Meet a rigorous standard of quality through a
  formal state or local assessment

19
Qualifications for Extended School Year Staff

• Must meet IDEAs 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 IDEAs 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 childs 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

Parents right to participate in IEP
decision-making
Staffs rightto privacy
26
Parent Inquiries Regarding Personnel
Qualifications

• Law on staffs 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
• teachers credentialsand subject matter
• authorizations with a
• public search feature
• by teachers last name

28
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. Teachers degrees/certificates/licenses and the
   field of discipline of each

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
  providers qualifications adequate

(Student v. Exeter Union SDExeter 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
• Nothing 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 districts failure to provide a highly
  qualified teacher provide a basis for a due
  process complaint?

(Prince Georges County Public Schools (MD.SEA
2009).)
43
Case Example

• FACTS
• Students IEP required special education
  instruction from a special education teacher
• Students teacher was absent for a month
• Substitute staff not highly qualified

(Prince Georges County Public Schools (MD.SEA
2009).)
44
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 Georges 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 Districts 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 Example

• FACTS
• Student qualified for special education as
  mentally retarded (MR)
• Parents disputed his eligibility category because
  private psychologist determined he was autistic
• Students teacher was qualified to teach both
  students with MR and autism

(Weissburg v. Lancaster SD (9th Cir. 2010).)
48
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).)
49
Case Example

• RULING
• Ninth Circuit
• Reversed
• Students 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
• Teachers inability or failure to implement a
  students 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 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).)
53
Case Example

• RULING
• Teachers held the proper credentials, butFor
  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 11 services in her behavior
  intervention plan (BIP)
• Students teacher and aides were not qualified or
  trained regarding BIPs
• Students 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 11 aide
  services as required by Students BIP
• This failure was material, as Students 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 teachers 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
• Students 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 Students 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 Students IEP
  been properly implemented it would have conferred
  FAPE

(Student v. San Jose USD (OAH 2006).)
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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 parents
  preferred teacher to Student

(Student v. Los Angeles USD (OAH 2010).)
66
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

67
How To Handle Parent Requests

• There is no better qualified or most
  qualified requirement
• So long as district staffis qualified, school
  districts retain the right to make personnel
  decisions

68
Case Example

• FACTS
• The district offered 10 hours of school-based ABA
• Student contended that she required 17 hours of
  in-home ABA
• Students in-home ABA provider had stronger
  qualifications than the districts provider

(Student v. Solana Beach SD Solana Beach SD v.
Student (OAH 2008).)
69
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 Districts 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 Example

• FACTS
• District offered a qualified health care
  assistant (HCA)
• Students mother held a nurse assistant
  certification and a health care providers
  certificate

(Los Angeles USD v. StudentStudent v. Los
Angeles USD (OAH 2007).)
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Case Example

• RULING
• The districts HCA was qualified
• Therefore the district provided FAPE
• Even if Students mother were more qualified, no
  legal authority requires the district to hire
  and/or pay Students mother

(Los Angeles USD v. Student Student v. Los
Angeles USD (OAH 2007).)
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Q A
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Break time!
Stretch
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