Andrew E. Faust

Caryl A. Oberman

1. In the Courts

1. Damages:  Dead or Alive?

1. A.W. v. Jersey City Public Schools, 486 F. 3d 791 (3^rd Cir. 2007).  After an explanation of why it was correct when it decided Matula in 1995, despite the opinions to the contrary of the overwhelming majority of other circuits, the Third Circuit concedes that Section 1983 cannot serve as a “shell” for actions under the IDEA and Section 504.  Whither, then, money damages?  Are they available under the IDEA or Section 504 independent of Section 1983?  Judge Baylson, in the Eastern District, says “no” under IDEA but “yes” under Section 504. He concludes that the analysis of Section 504 in Matula, which relied on the Supreme Court’s Title IX analysis in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028 (1992), remains untouched by A.W.  See Brandon V. v. Chichester School District, Civil Action No. 06-4687 (E.D. Pa. July 25, 2007).  Given (a) the completely parallel nature of FAPE-based Section 504 and IDEA claims in the elementary and secondary education context—a relationship reaffirmed by the Third Circuit in Andrew M., discussed below—and (b) the “clear notice” doctrine applicable to Spending Clause-based statutes as recognized in last year’s Arlington Central School District v. Murphy, 548 U.S. ___, 126 S.Ct. 2455 (2006), the last word might not have been heard on money damages under Section 504.

1. Andrew M. v. Delaware County Office of Mental Health and Mental Retardation, 490 F.3d 337 (3^rd Cir. 2007).  Although FAPE-based claims generally are available under both the IDEA and Section 504, not so under Section 504 for cases concerning infants or toddlers, whose rights are governed by Part C of the IDEA.  Children of this age are not “otherwise qualified” for public education services and thus cannot establish disability-based discrimination in the inappropriateness of an IFSP.  Unless and until Pennsylvania adopts universal public preschool programming, might the same analysis pertain to preschool-age children receiving services under an IEP in accordance with Part B of the Act?

B. Whose Right Is It Anyway?

1. Winkelman v. Parma City School District, ___ U.S. ___, 127 S.Ct. 1994 (2007).   Since its ground-breaking decisions on big issues in Rowley and Smith, the Supreme Court has squandered its few opportunities to provide guidance in IDEA cases by answering the exact same questions twice (the standard for tuition reimbursement in Burlington and Carter; the meaning of “related services” for medically-fragile children in Tatro and Garret F.) or on relatively small points of procedure (burden of proof in Schaffer; expert witness fees in Arlington).  In this case, the Court concludes that the IDEA affords overlapping substantive rights to parents and their children, and that parents can therefore represent themselves pro se in IDEA-based actions.  Broader implications (we’re struggling here): the effect on waiver agreements and the argument, heard more often during the debates over Montour, that limitations periods cannot run during the minority of the child.  The Court does offer further elaborations of its Spending Clause doctrine, even while refusing to apply it in this context.

C. Transition Planning: Just Another Procedural Hoop?

1. Sinan L. v. School District of Philadelphia, Civil Action No. 06-1342 (E.D. Pa. Jul. 2, 2007).  Despite new requirements in the IDEA ’04 that transition plans include “appropriate measurable post-secondary goals based on appropriate transition assessments,” 20 U.S.C. § 1414(d)(1)(A)(i)(VIII), the Court here concludes that the failure to draft a transition plan that includes such goals is a mere “procedural flaw” that would not support a finding that the IEP was inappropriate.  The Court rejects a prior Eastern District ruling to the contrary in East Penn School District v. Scott P., Civil Action No. 97-1989 (E.D. Pa. Feb. 23, 1999), on the ground that the prior ruling was based on State Board regulations that were since repealed.  Wow!

2. Board of Education or Township High School District No. 211 v. Ross, 486 F.3d 267 (7^th Cir. 2007).  In a case cited by the Eastern District in Sinan L., the Seventh Circuit says the same thing!  The absence of a transition plan for a transition-aged child is a mere “procedural flaw” when the child’s transition-related needs were not deemed elaborate enough to require goals and services other than those already elsewhere in the IEP.

1. Some Odd Ends

1. Brandon V. v. Chichester School District, Civil Action No. 06-4687 (E.D. Pa. Jul. 25, 2007).  As discussed above, money damages claims under Section 1983 and the IDEA are dismissed without prejudice, while identical claims under Section 504 are dismissed to allow for exhaustion of administrative remedies under the IDEA.

1. Lauren P. v. Wissahickon School District, Civil Action No. 05-5196 (E.D. Pa. Jun. 20, 2007).  Awarding compensatory education and tuition reimbursement under the IDEA and Section 504, while dismissing claims under Section 1983.  The Court re-emphasizes the long-standing principle that parent-selected private schools do not have to meet the appropriateness or least restrictive standards that public placements must.

1. Heather D. v. Northampton Area School District, Civil Action Nos. )1-770 & 03-3852 (E.D. Pa. Jun. 19, 2007).  Judge Buckwalter of the Eastern District accepts without analysis the hour-for-hour calculation of compensatory education time.  He awards 2428 hours, in a pre-IDEA ’04 case, at seventy-five dollars an hour for a total of $182,100.  Following the appeals panel reasoning, again without analysis, the court leaves the sole discretion of the parents the determination of how the money will be spent. In a separate opinion, attorney’s fees come in at $142,000.  Who needs money damages?

1. Damien J. v. School District of Philadelphia, Civil Action No. 06-3866 (E.D. Pa. Apr. 25 2007).  Private agency or school with which a public school contracts to provide special education programming or placements cannot be held liable in an IDEA or Section 504-based action.  The public school alone is accountable.

1. R.F. v. Warwick School District, Civil Action No. 06-257 (E.D. Pa. Dec. 21, 2007).  The Eastern District allows parents to supplement the administrative record with evidence obtained within four months of the development of the IEP in issue, but also permits the District to submit additional evidence specifically rebutting this additional evidence.

1. Board of Education of Fayette County, Ky. V. L.M., 478 F.3d 307 (6^th Cir. 2007).  Applying the more nuanced, child-specific approach to compensatory education awards recognized in Reid v. District of Columbia, 40 F.3d 516 (D.C. Cir 2005), but clarifying that the determination of when compensatory services have fulfilled their purpose and should be discontinued cannot be left to the IEP team.

1. The Panels.

1. In re: the Educational Assignment of G.T., Special Educ. Op. No. 1808 (PDE March 19, 2007). Applying a Burlington-Carter-like standard to the analysis of an IEE demand, in apparent contradiction of 34 C.F.R. § 300.502(e), the panel nonetheless refuses reimbursement on the ground that the work of the independent evaluator—well known for critiques of school district programming—“falls below the general professional norms for an appropriate evaluation.”

B. In re: the Educational Assignment of C.M., Special Educ. Op. No. 1765 (PDE Aug. 26, 2006). Refusing to recognize a “continuing violation” implied exception to the IDEA’s two-year statute of limitations, the panel nonetheless concludes that the District violated one of the expressed exceptions by “misrepresenting” to the parents that placement in the District’s ESOL program was sufficient to address all of the student’s needs.

1. The State Board.

A. Proposed Chapter 14 Regulations. After a relatively frenzied round of drafting that began in January, the State Board published in late June a set of regulations that appeared to be “final.”  Estimates now put the final adoption date at December of January at the earliest, June 2008 at the latest.  The following was an analysis of the key aspects of the regulations that Andy prepared when they appeared to be near adoption.  We cannot predict at this juncture how the final regulations will look, particularly on the more controversial issues such as class sizes and paraprofessional training and education.

1. Paraprofessional costs are going to rise. Proposed Section 14.105(a) will require that “instructional paraprofessionals” hired on or after July 1, 2008 must have completed “at least two years of post-secondary study” or possess an “Associate Degree or higher.”  This standard, which exceeds that of the No Child Left Behind Act, will render extremely difficult the already-difficult task of hiring and retaining such staff.  This two-year college requirement, moreover, is in addition to a requirement in the same section that all “instructional paraprofessionals,” including those already in service and those hired prior to July 1, 2008, meet a “rigorous standard of quality” by passing “a formal state or local assessment” of knowledge and ability to assist in the instruction of “reading, writing, and mathematics” or “reading readiness, writing readiness, and mathematics readiness, as appropriate.”

Two caveats could ease somewhat the burden of complying with this new credentialing mandate.  The first is that the term “instructional paraprofessional”—which is new in the law—does not appear to apply to aides and “personal care assistants” who are assisting exclusively with behavior intervention or social skills development.  Second, the new requirement cannot “supercede the terms of a collective bargaining agreement in effect on the effective date of [the new regulations].”  Presumably, a bargaining agreement that established minimum service qualifications for paraprofessionals involved in “instruction” would take precedence over the new requirements, at least for the life of the agreement.  Such an agreement, admittedly would be rare, and would, at best, only buy time.

2. Caseload maximums get better, and worse. Proposed Section 14.105(e) adopts new language to describe the levels of special education program.  Gone are the terms “itinerant,” “resource room,” “part time,” and “full time” that have endured for thirty years in Pennsylvania. In their place, the State Board has given us “Level I,” “Level II,” “Level III,” and “Level IV.”  This system assumes that every special education teacher is responsible, at a minimum, for the “[d]evelopment and management of an individual IEP” and that the children for whom those IEP are developed and managed constitute that teachers “caseload.”  The size of a teacher’s caseload—and thus the “level” of special education service delivered by that teacher—is determined by the percentage of time in an instructional day that students on the caseload are receiving “direct services,” either individually or in small groups of students with disabilities, that replaces “general education instruction within the regular education curriculum or replace[s] general curriculum with alternative curriculum.”  The caseloads based on this  curriculum replacement model are as follows—

This new caseload concept greatly simplifies calculation of caseloads by establishing a single caseload number tied to a single, reasonably measurable criterion.  The old caseload chart varied the maximums based on the type of intervention (“autistic support,” “learning support,” and so on) and on extremely vague descriptors of “itinerant,” “resource room,” “part time,” and “full time” that varied school district-to-school district and sometimes building-to-building.  The new chart also more generous than the old at the critical “Level II,” which corresponds roughly with the current “resource room” and is by far the most common level of service in most schools.  The current maximums for resource rooms range from 8 to 20.  The chart is also helpful at “Level III,” where current part time maximums range from 8 to 15.

At “Level IV,” however, the new chart poses a problem for many center-based and treatment programs that offer “full time” “emotional” and “life skills” support.  Current caseload maximums for these types of programs range from 12, for emotional and elementary-level life skills, to 15, for secondary-level life skills.  The result could be in increase in IU-operated and other center-based programs or decrease in the availability of space in these programs.  PAIU is expected to oppose the new chart for this reason.   Assuming nonetheless that the new chart becomes law, the proposed section does allow individual school districts to seek exceptions to the prescribed maximums from the Department of Education.  IU-operated programs are subject to the caseload maximums of the school district in which they are located. An IU could therefore work with its “host” school district to seek approval for a caseload exception that permitted more latitude to programs in centers and other specialized settings.

The curriculum replacement model differs significantly from past special education program level standards, which were based on the time children on the caseload spent outside the regular classroom setting.  Under the new chart, a child could be considered to be at “Level II” or above if he or she receives more than twenty percent of his or her instruction in academic or functional skills other than those targeted in the general curriculum, even if that instruction occurs in the regular classroom.   Because curriculum replacement is a concept that stands apart from the physical location of instruction, calculating the level of instruction  (total time of replacement instruction daily) will have to be entirely divorced from calculating “least restrictive environment” levels (total time outside the regular classroom weekly), which the federal government uses for compliance monitoring and the Commonwealth uses, in part, to calculate the so-called “LRE index score” for purposes of implementing the settlement in Gaskin.

The new chart raises issues that could take years, and possibly litigation, to sort completely out:

(1) Unlike the location of instruction, which remains relatively stable between regular and special education classrooms day to day, the amount of replacement instruction is likely to vary greatly day to day.  How will IEP teams calculate the percentage of time in replacement instruction on a daily basis? Suggested answer: Average the time over a longer period, such as a typical week, month, marking period, or even year.

(2) Because curriculum replacement time is less stable than time in a particular location, the replacement instruction time required for the students on a typical “learning support” caseload could vary widely.  How will school districts create reasonably stable caseloads that they can use both for IEPs and for identification of teachers on their special education plans? Suggested answer:  The new regulation will permit proration of teacher assignments so that a teacher might, for example, split her assignment into thirds, spending a third of her time delivering Level I services, a third delivering Level II, and a third delivering Level III.  The caseload maximum for each third would be prorated appropriately: 16 for Level I + 8 for Level II + 5 for Level III = 29.

(3)  The State Board premised the caseload maximums for Levels II through IV on the  assumption that the teacher is “developing” and “managing” individual IEPs.  What if that assumption is incorrect, and some teachers are assigned the responsibility of writing and monitoring implementation of IEPs and others are responsible for delivering “replacement instruction”?  Could the number of children served by the “instructor,” as opposed to the “developer” and “manager,” exceed the prescribed maximums?  Suggested answer:  The language does present a potential loophole that could be exploited by creative assignments of teachers to instructional and IEP caseload management duties.  The upside not only is possibly “more bang for the buck” but also (a) a potential solution to the full-time conundrum for IUs and other operators of center-based programs, discussed above; and (b) a potential solution for those teachers who will not meet the “highly qualified” standard of No Child Left Behind, which does not apply, of course, to teachers who are not delivering instruction.  The downside, of course, is that the quality of instruction delivered by special education teachers could suffer.

3. Contracts with publishers of printed material will have to provide for simultaneous delivery of print and electronic “accessible” formats. Proposed Section 14.106 adopts, as the IDEA’04 required, the National Instructional Materials Accessibility Standard (“NIMAS”) for all printed material purchased by school entities in Pennsylvania.  The NIMAS is an electronic formatting standard for the digital translation of all published material used in schools, from textbooks to workbooks to literature.  To ensure that all children with “print disabilities” have immediate access to all such material at the same time that their nondisabled peers do, school entities will have to ensure that their contracts for the purchase of all printed materials require the publisher to provide, along with print versions of the materials, NIMAS-formatted versions for use by children with such disabilities.  An alternative to requiring direct delivery of NIMAS-formatted materials, for which the publisher could impose significant additional charges, is to contract with the National Instructional Materials Access Center (“NIMAC”) and to require the publisher to deposit its NIMAS-formatted material with that federal repository.  Publishers are required to deposit materials with the NIMAC anyway, and this arrangement thus presumably would save the contracting school entity some money.   Because of the onerous conditions that the NIMAC has, to date, imposed on those entities that contract with it, and because the NIMAC inventory is, at this point, very limited, we do not recommend contracting with it.  Direct contracting with the publisher that ensures delivery of NIMAS formatted materials is, for the time being, the best course.

Both federal law and the proposed regulation are unclear in defining exactly what a “print disability” entails.  The Pennsylvania Department of Education, Bureau of Special Education, has taken the informal position that the term is limited to children with vision impairments.  The 1931 federal law that uses the term, however, is not nearly as firm.  We recommend reading the term more broadly to include children with learning disabilities and other cognitive impairments that limit the ability to derive meaning from print by reading.  Regardless of whether the term applies to the relatively few students in the population with vision impairments or the far larger number with learning disabilities and other cognitive impairments that affect reading development, the new regulation will require school entities to make arrangements with publishers to ensure the simultaneous availability of newly-purchased materials in both print and NIMAS-formatted versions.

4. IST is out, instructional intervention is in, and “child find” gets more complicated. Proposed Section 14.122 eliminates the long-standing requirement that school districts engage in an instructional support team (“IST”) process prior to referring students for multidisciplinary team evaluation.  In its place, the proposed regulation will require that all school districts have a “screening process” that subjects “all students” to screening at “reasonable intervals to determine whether [they] are performing based on grade-appropriate standards in core academic subjects.”

Universal academic screening is possibly the most far reaching and profound change in the new law. It requires not just that ongoing assessment occur in regular classrooms but that regular education instructional practices themselves change to ensure that basic reading, writing, and mathematics instruction is more standardized and is delivered in a highly consistent matter by well-trained teachers.  Without such standardization and consistency, which many teachers are likely to resist, the data derived from screening “at reasonable intervals” will not provide a valid basis for determining whether the problem is with the child, as opposed to the curriculum, materials, or teacher.  Without standardization and consistency, the potential will only increase either for over-identification of “curriculum-disabled” students or for parent attorneys and advocates to exploit poor screening data to fuel “child find” cases.  The need for solid, consistent instruction in regular classrooms is only reinforced in proposed Section 14.125(a)(4). This section will require that, prior to identifying any student as having a “specific learning disability,” the school district demonstrate that the student was “provided scientifically-based instruction in regular education settings, delivered by qualified personnel” and that it conducted “repeated assessments of achievement … at reasonable intervals, reflecting formal assessment of student progress during instruction.”  The term “scientifically-based instruction,” as use in the proposed regulation, is the highest of several different standards for regular academic instruction used in both NCLB and the IDEA ’04. It essentially requires rigorous field trials that include random assignment of students to control and study groups with resultant evidence demonstrating the effectiveness of the studied program or method and materials.

Also notching up the “child find” burden for school districts and early intervention providers is proposed Sections 14.121(b), which will require the publication of “written information concerning “early intervention and special education services and programs and the manner in which to request such services and programs” in “the school district handbook and school district web site.”  Such public awareness information must also include “information regarding potential signs of developmental delays and other risk factors that could indicate disability.”  For obvious reasons, school districts and IUs will need to take great care in drafting such “potential signs” information for public consumption.

5. The sixty school day timeframe for evaluations remains for school-age programs and becomes a little more rational for reevaluations. In a grace note, the State Board is proposing to retain in Sections 14.123(b) and 14.124(b) the sixty school day standard for evaluations and reevaluations. The Board has also eliminated from Section 14.124 the untenable requirement that the reevaluation timeline run from the date on which a parent requests a reevaluation, rather than from the date on which the parent gives permission to reevaluate.  Although the language of proposed Section 14.124(b) could be clearer, the reevaluation timeline apparently will run from the point at which the school district receives signed permission to reevaluate from the parents or, recognizing that reevaluations can occur  without parent consent when the parents fail to respond, “from the date on which the agency is able to document that it has made reasonable efforts to obtain parental consent in accordance with 34 C.F.R. 300.300(c)(2) and the parents have failed to respond.”  “Reasonable efforts” include documented telephone calls, correspondence, and attempted home or even workplace visits.  See 34 C.F.R. §§ 300.300(d)(5) and 300.322(d).

6. School districts will have to think fast about the criteria they will use to identify “specific learning disabilities.” Proposed Section 14.125(a)(2) leaves entirely to school districts the task of selecting one of two options for identifying students with “specific learning disabilities.”  Because SLD is the eligibility category under which fifty to sixty percent of all children are identified, the choice is likely to have a profound effect on the future size and composition of special education programs.  Although the language of the proposed regulation is a jumble of sometime inconsistent language pulled from different portions of NCLB and IDEA ‘04, the choice is between (a) a process that requires documentation through “regular progress monitoring” of the student’s response to “scientific, research-based intervention” in the “regular education setting” and (b) the long-standing assessment model requiring the establishment of a “severe discrepancy between intellectual ability and achievement.”  For the following reasons, school districts should strongly consider adopting the first of these options.

First, as noted above, proposed Section 14.125(a)(4) will require that prior to identifying any student as having a “specific learning disability”—regardless of whether the school district uses the “response to intervention” or the “severe discrepancy” model—the multidisciplinary team must demonstrate that the student was “provided scientifically-based instruction in regular education settings, delivered by qualified personnel” and that it conducted “repeated assessments of achievement … at reasonable intervals, reflecting formal assessment of student progress during instruction.”  School districts are thus effectively required to measure response to intervention anyway and might as well not add an unnecessary second layer to the analysis by also requiring testing to determine a discrepancy.

Second, school districts are facing a plague of so-called “independent educational evaluations” by clinic or office-bound private psychologists who can find evidence of dysfunction in the cognitive and achievement profile even in students who are, in the actual school setting, developing normally and meeting grade-level expectations.  School practitioners have the great advantage of having knowledge of and experience with the student in the actual learning environment, an advantage that they surrender by using the more clinical discrepancy analysis to determine the existence of a SLD.

Third, recent research in the use of “cross battery assessment” and more sophisticated analysis of cognitive and achievement patterns has debunked “severe discrepancy” as a valid model of SLD.  Discrepancy analysis, used alone, results in under-identification of students with low average and borderline general intelligence and vastly over identifies students whose difficulties with basic academic skill development are the result of poor instruction.

The downside of adopting the “response to intervention” model are (a) that many school districts simply are not prepared to implement with fidelity scientific, research-based instruction in reading, writing, and mathematics; and (b) the intervention model will not work when the school district is called upon to evaluate a district resident placed in a private school, when a child moves into the school district from another district with little information concerning his or her regular education intervention history, or when parents insist on an evaluation before regular education interventions have run their course.  Although the first downside can only be addressed through major change in school district practice and culture, the second can be addressed by adopting the use of response to intervention for those children who have had exposure to scientific, research-based instruction and regular progress monitoring, while retaining the use of discrepancy analysis to assess private school students, move-ins, and “hurry up” referrals from parents.

7. “Equitable participation” for parentally-placed private school students is an IU problem; “child find” for these students remains everyone’s problem. Sections 14.103 and 14.104(d) make clear the previously-established policy of the Department of Education:   the IUs, and not the school districts, are the “local educational agencies” (“LEAs”) for purposes of finding, evaluating, and offering “equitable participation services” to students whose parents have opted and paid for private school placements.  Much confusion ensued when Congress, in IDEA ‘04, modified the “equitable participation” language in 20 U.S.C. § 1412(a)(10)(A)(i), to make the LEA in which a private school is located responsible for finding, evaluating, and providing “equitable participation” to students with disabilities attending that school.  Many assumed that the term LEA meant “school district.”  In fact, LEA is a term that encompasses both school districts and “regional” educational service agencies such as IUs. The proposed sections clarify that, for purposes of the “equitable participation” mandate, such as it is, LEA means IU in Pennsylvania.

Although IUs thus play a potential role in locating and identifying children with disabilities attending private schools, that role overlaps with the same role played by school districts.  The general “child find” mandate of the IDEA, which is applicable to all LEAs—not just those responsible for providing “equitable participation,” requires the location and identification of private school students. See 34 C.F.R. § 300.111(a)(i).  Proposed Section 14.121(a) applies the obligations of that general “child find” regulation to “each school district” in the Commonwealth.

8. Program descriptors such as “autistic support” and “learning support” finally mean something other than the disability label applied to the students in the class. Proposed Section 14.131(a)(1) provides, for the first time since their introduction in 1990, relatively clear definitions for the various special education program types, such as “autistic support,” “learning support,” and “emotional support.”  Existing Section 14.141, for example, defined the term “autistic support” to mean “[s]ervices for students with the disability of autism.”  This disability-focused definition led many to believe that Pennsylvania law requires categorical placements rather than needs-based placements in special education programs.

Many parents of children with autism, for example, have argued that the diagnosis of autism entitles their child to an “autistic support” program, even if the child primarily requires academic remediation.  The new definition of “autistic support” limits these services to children with autism whose needs fall “primarily in the areas of communication, social skills or behaviors consistent with those of autism spectrum disorders.”  Likewise, the definition of “learning support” in the proposed section limits the services to children whose needs fall “primarily in the areas of reading, writing, mathematics, of speaking or listening skills related to academic performance.” “emotional support” services are for those needs fall “primarily in the areas of social or emotional skills development or functional behavior.”  The intent appears, appropriately, to be to limit the use of special education settings to the development of academic or functional skills, and thus to prevent as much as possible their use for content instruction or to “warehouse” students who a difficult to “fit” into regular education classrooms.

9. Transition begins at age 14. For better or worse, proposed Section 14.131(a)(5) retains age 14 as the starting point for transition planning despite changes in the IDEA ‘04 that pushed the starting point back to age 16.  While some good can come from beginning the transition planning process earlier in the student’s secondary career, the IDEA ‘04 ramps up considerably the transition mandate, requiring, among other things, “appropriate measurable post-secondary goals based upon age appropriate transition assessments,” 20 U.S.C. §1414(d)(1)(A)(VIII)(aa).  Locating “age appropriate transition assessments” and developing “measurable post-secondary goals” for students in the fresh bloom of adolescence will pose a challenge.

10. Use of restraint does not automatically necessitate reconvening the IEP team. Good new comes in proposed Section 14.133(c)(2).  This section has long required that the IEP team reconvene any time school staff used manual restraint on a student.  The initially-proposed revision of this section would have required that the team reconvene on such occasions within ten school days of the incident requiring the use of restraint.  Responding to suggestions from the education community, the State Board eliminated the ten-day requirement in those cases when “the use of restraint was consistent with the explicit provisions of the existing IEP and that IEP remains current and appropriate for the student.”  In an apparent attempt to offer a counterweight to this school district-favorable change, the State Board also added proposed Section 14.133(c)(1), providing that school entities “should” inform parents of the “emergency use of restrictive procedures such as restraints” and “should” obtain parent consent for “future uses” of such procedures.  The curious use of the word “should” in this context suggests that the inform and consent provisions are not as binding as most other requirements of the regulations. Presumably, the identification of specific restraints as part of the behavior interventions and strategies in an IEP that the parents have approved will suffice to provide the recommended “consent” for future use of restraint and other “restrictive procedures.”  IEP teams that are considering behavior interventions and strategies for students with a history of actual or threatened physical aggression should bear in mind the need to make explicit provision in the IEP for the possible use of particularly-identified restraints.

11. Stay put for preschool transition stays put. The United States Court of Appeals for the Third Circuit ruled in Pardini v. Allegheny Intermediate Unit, 420 F3d 181 (3^rd Cir. 2005), that children transitioning from the more home-based, therapeutic Infants-and-Toddlers program under Part C of the IDEA to the more school-based preschool program under Part B retain the right to have their Part C services maintained pending the outcome of any dispute with the part B agency about preschool services.  This ruling was contrary to the long-standing position of the United States Department of Education that the IDEA’s “stay put,” or “pendency,” provision does not apply to the transition from Part C to Part B.  It placed preschool service providers—usually IUs in Pennsylvania—in the untenable position of having to endure the cost of home-based therapies while also enduring the cost of protracted due process hearings over proposed preschool services. The result was, and is, that preschool service providers, under sometimes extreme budget pressure, knuckle under to parent demands for therapy-rich programs that are not as focused as they should be on the development of pre-academic  and school readiness skills.

When the final regulations implementing the IDEA ‘04 were issued in August of 2006, they contained a provision explicitly adopting USDE’s “no pendency” position for Part-C-to-Part-B transitions. See 34 C.F.R. § 300.518(c).  Unfortunately, the Governor’s Office of Child Development (“OCD”), which purports to represent an interagency perspective on early childhood education issues but is housed within the Department of Public Welfare, has announced that the “policy” of the Commonwealth is to implement “stay put” in accordance with the Pardini decision.  Given that absence of any regulatory or statutory authority for such a position, many in the education community had hoped that the State Board would rethink the “policy” pronouncement of the OCD and expressly adopt Section 300.518(c) of the federal regulations.  They failed to do so.  In fact, the provision of the proposed regulations that explicitly adopts the federal regulations by reference, Section 14.102(a)(2), omits subsection (c) of Section 300.518. Only future litigation will determine whether the Commonwealth can sustain a “policy” that results in the expenditure of IDEA Part B dollars for services that are not mandated by, and possibly for children who are not eligible for services under, the IDEA Part B implementing regulations.

12. Two tiers stay; pre-hearings go. Proposed Section 14.162 retains the two-tiered hearing system that has existed in Pennsylvania since 1990, despite the elimination of the second tier appeals panel system in the draft regulation.  New subsection (u) of this proposed section applies the provisions of the General Rules of Administrative Practice and Procedure, 1 Pa. Code Part II, to tier one hearings and tier two appeals panel reviews, although many of the practice rules contained in the GRAPP cannot practicably and in some cases, legally, be applied to IDEA-mandated due process proceedings.  Much confusion will follow until the inconsistencies are worked out in practice.

The State Board eliminates the prehearing conference, which has played a part in special education practice for more than thirty years.  The move is an obvious recognition that the IDEA ‘04-mandated “resolution session” serves essentially the same purpose.

13. All that new verbiage concerning “least restrictive environment” does not change the law. Much verbiage is added to the regulations in proposed Section 14.145 and elsewhere on the subject of “least restrictive environment” (“LRE”), undoubtedly a nod to the Gaskin-fueled segment of the advocacy community.  None of this verbiage changes or expands upon the existing requirements of the IDEA, as it has been interpreted by the courts.

14. All that new verbiage concerning “extended school year” services does not change the law, either. Again, much verbiage is added to proposed Section 14.132 concerning “extended school year” (“ESY”) programming.  As with the new language concerning the LRE mandate, the new ESY languages adds nothing to the interpretations of the IDEA and the court decisions on ESY that the Department has published in the form of Basic Education Circulars for the past five or six years.