Harris Beach has a team of four attorneys paying close attention to issues and news in the special education arena. Based on their knowledge of the field, they have assembled a list of issues for school districts, special education administrators and others in the field to be aware of and, perhaps, address proactively.
The top 10 identified issues:
1. Special Education Staff and Program Shortages
Even before COVID, staffing and program shortages were common in the field. The pandemic exacerbated the problem.
In some cases, such as transportation, the shortage is common throughout education. Bus drivers have been in great demand throughout the country.
Harris Beach attorneys recommend school districts, when possible, consider sharing transportation duties with other districts in situations such as transporting students to out-of-district programs.
The problem should also be addressed by the highest levels of the school district, not left to the special education director. Coordination with your Boards of Cooperative Educational Services (BOCES) is essential. The special education director needs to work closely with the superintendent and the transportation director to work out arrangements for all students.
With teacher shortages, districts should persistently advertise for teachers and short and long-term substitutes.
Special education administrators also need to be proactive with superintendents about their needs so the superintendents can encourage BOCES to create needed programs.
Remote learning could be an answer in some circumstances. It is not appropriate for all students or services, but it is for some. Just be aware of certification issues if the remote program is offered from a different state.
Finally, in some instances home services could be an option, but this should be a temporary option, not a long-term solution.
It is imperative that districts have an Individualized Education Program (IEP) in place for a student, even if the program does not currently exist. The Committee on Special Education (CSE) must ensure that the student has an IEP in place that is able to be implemented.
2. Compensatory Services
As a result of COVID and staffing shortages, some students may have missed certain services.
Districts should look back and determine if services were missed because, under some circumstances, compensatory services are necessary to make the student whole.
Requests for compensatory services increased after COVID as more parents became aware that districts must make up services in circumstances in which students did not make expected progress.
For districts, it may be easy to know if services are owed. It is more difficult to pinpoint how much services are owed because students are not automatically entitled to one-for-one make-up sessions. For example, a student who misses 100 hours of speech-language therapy is not automatically entitled to 100 hours of compensatory speech-language therapy. Rather, the inquiry is based on the student’s progress and the student may need more or less to make up a gap in expected progress.
The CSE should consider data on student progress to help determine how much services are owed. Focus on whether the student achieved their annual goals and what was missed by collecting and reviewing the data to identify the deficit and what is needed to address it. Progress Monitoring data from the student’s last year’s IEP will be key information to help determine what if any compensatory services may be due to the student for the 2023-2024 school year.
In some cases, administrators and the parent can work out an agreement on compensatory services. That is ideal, but the district should be certain to document the agreement in writing separate from the IEP. The district should also document the provision of any compensatory services.
3. Managing Student Behaviors and Mental Health Issues
This is a major issue right now, perhaps exacerbated by COVID and a lack of services to address mental health, Harris Beach attorneys note.
One potential issue is Child Find violations. Child Find is a district’s duty to identify and evaluate all students who are reasonably suspected of having a disability. Those students should be referred to the CSE.
School districts should be mindful that students may qualify under special education law, or Section 504, as a student with a disability, even when the student is doing well, when their mental health condition does not allow them to attend school regularly, get through their day or develop appropriate peer or adult relationships.
Districts frequently provide pre-referral services that are too intense and for too long to students with social-emotional and/or behavioral difficulties. These pre-referral interventions are often similar to special education-level support and could indicate the student should have been referred and an IEP developed.
When students exhibit behaviors that interfere with learning, districts should conduct a Functional Behavioral Assessment (FBA) and put a Behavioral Intervention Plan (BIP) in place.
By referring and getting IEPs and BIPs in place, the district is better serving the student and in a better position to defend its plan, attorneys say
4. Pressure to Reduce Suspensions/Restorative Justice
Harris Beach attorneys caution that students with disabilities are protected from discipline for behaviors outside of their control through the manifestation determination review (MDR) process.
Harris Beach attorneys have noticed an increase in suspensions as student behavioral needs have increased for all students, including those in general education and special education. On the other hand, the pressure to keep children in the classroom is strong; the attorneys anticipate future legislative limitations on suspending all students, including students with disabilities.
The state is encouraging Restorative Justice, the attorneys said. This is a theory of justice focused on mediation and agreement rather than punishment. It is based on inclusionary practices that bring students and teachers together. The state has initiated free training to districts on Restorative Justice techniques. Using this alternative approach does not, however, remove the requirement to conduct manifestation determination reviews when student behavior results in the number of suspensions and/or removals from school that trigger the manifestation determination review safeguards.
5. Services for Students Beyond 21 Years of Age
One of the biggest issues affecting particularly New York school districts this year is providing services to student with disabilities through age 22 — an additional year that will likely impact district budgets.
A U.S. Second Circuit Court of Appeals decision holding that Connecticut must make available a free appropriate public education (FAPE) until age 22 for students with disabilities (SWDs) who had not received a high school diploma led to New York’s State Education Department to opine that New York school districts must do the same.
The legal requirement is now that a FAPE must be available to students until they either earn a high school diploma or turn 22, whichever occurs first. However, “SED’s Office of Special Education recommends that school districts consider providing such services through the end of the school year in which the student turns 22 or upon receipt of a high school diploma, whichever occurs first.”
This change in eligibility of services will likely have significant impact on school districts across New York. Administrators, boards of education, and special education professionals will need to plan for increasing budget allocations to fund these additional services. It remains unclear whether the Board of Regents and NYSED program offices will provide additional funding and guidance to support districts in meeting these new special education programming and service requirements. The Harris Beach Education Team previously issued a Legal Alert on the subject of services until age 22.
6. Increase in Independent Educational Evaluation Requests
More parents are asking for Independent Educational Evaluations (IEEs), perhaps because of COVID, staffing shortages or increased awareness.
Harris Beach attorneys recommend districts be proactive. The school district should have an IEE policy and procedure in place identifying the district’s criteria for IEEs, including evaluator credentials, fees, and geographic location. Although it is permissible to reach out to the parent and ask why they want the evaluation, districts cannot require parents to provide a reason. Rather, parents are entitled to IEEs when they disagree with a CSE evaluation conducted by the school district. The school district’s response to a parent’s request for an IEE must be to either grant the request or initiate an impartial due process hearing to demonstrate the district’s own evaluation was appropriate and/or to enforce the district’s IEE criteria. Notably, it is often less expensive to grant the request, but there are some circumstances in which districts decide to initiate due process.
Also, if an independent evaluation is requested, the district should provide parents with an updated provider list for them to select an evaluator. The list should contain active providers within the district’s defined geographic area, who have qualifications and credentials equal to those required by the district and pricing acceptable to the district. Regularly check community rates for evaluations to set your fee parameters.
7. Students Viewed as a Threat to Others
When a student with (or without) a disability is viewed a threat to others, a district will face pressure from two sides: the parents and state requirements to maintain educating the student in the least restrictive environment, as well as the teachers, students, parents of students and others who perceive the student as a threat.
It is advisable for every district to have threat-assessment procedures and a trained team to analyze each threat and determine whether it is a true or passing threat. Students with disabilities who are disciplined for making threats are entitled to manifestation determination review protections when warranted because of the length of suspension or removal.
If a nexus is found between the student’s misconduct and disability, the district may pursue an Interim Alternative Educational Setting (IAES) if the misconduct involved a weapon, drugs, or resulted in in serious bodily injury. Placement in the alternative setting may be for up to 45 school days, but no longer than the length the suspension would have been. The CSE ultimately determines the IAES placement for a student.
The other option is to initiate due process and ask an independent hearing officer to order placement in an IAES because the student is a threat to harm themselves or others. The district would need to prove the student is dangerous, which is often challenging.
8. Greater Pressure to Mainstream Students with Disabilities
Many parents naturally want their children with disabilities to be educated alongside their non-disabled peers. Parents want placement in the least restrictive environment, and this is also required by law. Districts must remember that it is the least restrictive appropriate environment, Harris Beach attorneys say. Some students need smaller environments with less distractions and more individual attention.
Attorneys recommend districts remain patient and be sure to consider the parent’s perspective. CSEs are reminded that it must exhaust all potential supplementary aids and services within a setting before recommending a more restrictive setting for a student. Has the district tried all possible supports and accommodations? Have all options been exhausted? Personal aides? Assistive technology? Behavioral intervention plan?
The key is to try everything reasonably possible and see if it works. There will be pressure, perhaps from inside the building or parents of other students, to separate a student, but districts need to exhaust all reasonable options before placing the student in a more restrictive setting. Sometimes those options will work for a student. But if the interventions are not successful, , the parents may see that the student is not making progress in the setting and accept a change. Either way, the district will be in a better position to defend its decision.
9. Service Animals
School districts are seeing an increase in students being accompanied by service animals in school.
Districts are understandably cautious about service animals in schools because of the distraction they may cause, but there are two questions administrators must ask before granting or denying a request: (1) Is the animal necessary for a disability (if it isn’t obvious, such as a student with blindness)? And, (2) what task is the animal trained to perform?
If the answer is yes to a disability, such as anxiety, and yes to the task, such as applying deep pressure in a stressful situation, the district must grant the request. There’s not a lot of wiggle room, Harris Beach attorneys say. The right to a service animal is a distinct set of rights under the Americans with Disabilities Act, independent of the requirements/rights under the IDEA.
After the animal has been admitted to school, the district will be in a better position to assess the extent to which the service animal is able to perform the task for which it was supposedly trained. The district will also determine the extent to which the animal disrupts school operations or poses a threat to others. Under those circumstances, the service animal may be excluded from the school setting.
10. Reading Instruction
Reading is a hot-button issue for many parents and advocates. Parents of children with reading disabilities frequently make demands for an IEP to include specific teaching methodologies, evaluator credentials, the amount of instruction time and staffing ratios for instruction. Some independent evaluators make blanket recommendations on reading, such as every student should have one hour of daily individual instruction.
But districts should determine reading instruction, including specific annual goals, based on the individual needs of the student. Ultimately, the IEP goals drive the instruction, and a student’s teacher has the authority to identify the appropriate methodology to address those goals. Except in rare exceptions, decisions regarding teaching methodology should be made by teachers in the classroom, not at CSE meetings.
Reading intervention is frequently provided on a building-level basis so CSEs do not include the specialized reading on student IEPs. But for students with disabilities who require specialized reading instruction, specific content such as annual goals, frequency and duration of service, staffing ratios and instructional settings should be included in the student’s IEP.
These 10 issues will significantly impact the special education field in New York and across the country over the next school year. Harris Beach’s Education team will monitor these issues and other related issues and report back on developments.
f you have questions about this legal alert or related education matters, please contact attorney Howard J. Goldsmith at (518) 701-2736 and email@example.com; attorney Anne M. McGinnis at (585) 419-8613 and firstname.lastname@example.org; attorney Jeffrey J. Weiss at (716) 200-5141 and email@example.com; attorney Andrew R. Mark at (716) 200-5263 and firstname.lastname@example.org; or the Harris Beach attorney with whom you usually work.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.