SPECIAL EDUCATION AN OVERVIEW OF THE PROCESS OF IDENTIFICATION AND PLACEMENT Osgoode Professional Development

(May 7, 2007)

By: Brenda J. Bowlby

Hicks Morley Hamilton Stewart Storie LLP Barristers and Solicitors Toronto-Dominion Tower, 30th Floor Box 371, T-D Centre Toronto, Ontario M5K 1K8 Telephone: 416-864-7300 Fax: 416-362-9680 E-mail: bjb@hicksmorley.com
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SPECIAL EDUCATION AN OVERVIEW OF THE PROCESS OF IDENTIFICATION AND PLACEMENT: Introduction

This paper provides a brief overview of the identification and placement process and touches on some of the significant procedural points in the special education process.1

The IPRC Process

From a statutory perspective, special education starts with s. 8(3) of the Education Act. Section 8(3) of the Education Act directs the Minister of Education to require boards to implement procedures for the early and ongoing identification of exceptional pupils and to provide a process by which parents can appeal the appropriateness of the special education placement of their exceptional pupils. These procedures are set out currently in O.Reg. 181/98.

The initial process of identification and placement, and thereafter the annual review of placement, is done by the Identification, Placement and Review Committee. (IPRC) The Regulation requires each school board to maintain at least one IPRC and leaves it up to the school board to determine how IPRCs are to be organized, whether by geographic district, or subject matter -- for example an IPRC which deals only with gifted pupils or by school, which is commonly the case.

Note: while the comments in this article will reference the rights and role of parents in the special process, it must be kept in mind that where a student has reached the age of 18 years, the age of majority, the student has the right to exercise those rights on his/her own behalf. Accordingly the words parent or parents should be read to include, in addition to a custodial parent or legal guardian, a student who 18 years of age or older.

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Every IPRC must include either a principal of the Board or a supervisory officer of the Board. However, this mandatory member of the IPRC may designate a person to act in his/her place. While it is a common practice for the Principal to sit or even chair the IPRCs conducted in his/her own school, it may not always be wise that this occurs. The Principal plays a key role in the referral of the student to the IPRC and, notionally, represents the school in the process of identification, placement and review. While the process of the IPRC is an administrative rather than a judicial process, nevertheless, the appearance of a conflict may arise if a principal refers a student for identification to a committee of which the Principal is also the chair, particularly where there is disagreement between the parents and the school. In such cases, it may be wise that a Principal from another school or the Superintendent sit on the IPRC rather than the Principal.

Students are referred to an IPRC for identification, in the first instance, by the Principal. The Principal can refer a student to an IPRC on his/her own initiative so long as he/she sends written notice to the parents that he/she has done so. Alternatively, parents may request the Principal to refer their child to an IPRC in which case the Principal must do so. Where the Principal has referred the student to an IPRC, the Principal, within 15 days of giving written notice to the parents, must provide the parents with a copy of the Board s Parents Guide and provide to the parents a written statement of approximately when the IPRC is expected to meet for the first time to discuss the student. Similarly, where the parents request that their child be referred to an IPRC, the Principal must send to the parents, within 15 days of the request, an acknowledgement of receipt of the parents request, together with a copy of the Parent Guide and a written statement of when, approximately, the Principal expects the IPRC to meet for the first time to discuss the student. Although the placement of an exceptional pupil must be reviewed by the IPRC annually, an earlier review can occur on the request of the Principal, with written notice to the parents, at any time. The parents also may request a review, but must wait for at least 3 months since the last review. In either case, within 15 days after the Principals written notice or the parents request, the Principal must provide the

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parents with a written statement of approximately when the IPRC is expected to meet to review the students placement.

It is to be noted that the parent must be provided with written notice of an IPRC hearing at which the student is to be discussed, including a statement of time, date and place, at least 10 days in advance of the meeting.

The role of the parent in the IPRC process changed significantly with the promulgation of O.Reg.181/98. Parents and students, aged 16 years or older, have the right to be present and to participate in all IPRC discussions about the student and to be present when the IPRC makes its decisions on identification or placement. This includes what some boards call the pre-IPRC process where discussions and tentative decisions made about identification or placement but only if members of the IPRC are involved such discussions. The same requirement would not apply if the pre-IPRC process did not involve IPRC members, but simply involved school staff or board special education staff. However, wisely, most boards do attempt to involve the parents in such prehearing discussions with the result that usually any issues are resolved long before the IPRC holds it meeting to make its decision.

The jurisdiction of the IPRC is to make a decision on identification, in the first instance, and if the student has been identified as exceptional, to make a decision on placement. The IPRC is specifically not given a power to make decisions on special education programs and services, although it may make recommendations either on its own accord or where a parent requests it to do so.

In making its decision on identification and/or placement the IPRC must obtain and consider an educational assessment of the student, which will normally be provided by school staff. As well, where the IPRC determines that it needs a health assessment of the pupil and/or psychological assessment of the pupil in order to make a decision, the IPRC may request such assessment. If such an assessment is available in the OSR, the Principal may produce it. However, where a new assessment is required, parents

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must consent to the obtaining of such an assessment. The IPRC may also speak to the student, with parental consent, if it is determined that it would be useful to do so. Otherwise, the IPRC is charged with considering any other information which it feels might be useful in making its determination, as well as any information provided by the parent or pupil if aged 16 years or older.

The issue of what a placement is has provided, perhaps, the most controversy in special education. On its face, it is straightforward it is the place where a student receives special education programs and services, whether in a regular class or a provincial school or something in between. The controversy which arises concerns the degree to which placement also involves special education programs and services. In the Judicial Review of the very first Special Education Tribunal decision, Dolmage v. Muskoka Board, the Divisional Court expressed its view that in determining a placement that is suitable for the student, it is essential to consider the programs and services that are available in the placement. The question which arises is how special education programs and services can be disentangled from placement? The answer is that it cant always be done. As a result, in some cases a decision on placement will include a decision on program and services. This also means that there are times when program and services will be appealable as part of placement.

As for the criteria or standards which apply when an IPRC is deciding a placement, the legislation provides little assistance. Section 8(3), noted above as the starting point, says that the Minister must ensure that appropriate special education programs and services are available and must provide a process for parents to appeal the appropriateness of the placement. So, it is fair to conclude that the primary criterion which must be met is appropriateness and this appears to be the conclusion which the Court drew in the Dolmage case. The Court observed that The idea of an appropriate special education programme and the appropriateness of placement of the pupil, surely involves the idea of suitability, and is not to be confused with a placement which amounts to perfection.

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Subsequently, Special Education Tribunals have applied what appears to be a higher standard of the placement which best meets the students needs. This higher standard might become an issue in a case where the only reason why a school board opposes a particular placement is the cost of a particular placement for example, because a perfectly appropriate less costly alternative placement is available. Although this has typically not been an issue in Special Education Tribunals, with years of declining financial resources, this could change. The question then becomes whether exceptional pupils are entitled to the very best placements money can buy or to a less costly placements which are appropriate to meet their needs. This issue will likely loom large in the years ahead.

Where the placement to be considered is outside a regular class, O.Reg. 181/98 requires the IPRC to consider a placement in the regular class first before looking at a placement which would withdraw the student from the class. If the students needs can be met in the regular class with appropriate special education services and is consistent with parental wishes, the student must be placed in the regular class.

Once the IPRC has reached its decision, it must provide the parents with a written statement of the decision as soon as possible. The parents may accept the decision; they may request a meeting with the IPRC to review the decision; or they may appeal the decision. In order to appeal, the parent must provide written notice to the Director of Education within 30 days of receipt of the IPRCs decision, if no request is made to the IPRC to review its decision or, if a request for review is made, within 15 days of receipt of the IPRCs written statement following the review.

The placement directed by the IPRC cannot be implemented by a Principal unless the parents consent to the placement or, if the parents do not consent, the time for filing an appeal has elapsed. Where parents do appeal, the placement which was in place at the point of the IPRCs decision is stayed. That is, it cannot be changed. Where this seems to pose the greatest problem is where the student is moving from grade 8 to grade 9. Frequently, the placements available in high school are very different from

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those available in elementary schools and it may require some creativity to figure out what the stayed placement will look like.

Where a student is placed in the first instance or has a change of placement, the Principal is responsible to ensure that the students IEP is created or reviewed and updated within 30 days of the implementation of the placement. Where a students placement is reviewed and confirmed, the Principal must ensure that the students IEP is reviewed and updated within 30 days of receiving notice of the IPRCs decision.

Special Education Appeals

The parents appeal will be heard by an ad hoc panel of three. The Special Education Appeal Board (SEAB) will be comprised of an appointee of each of the parent and the School Board. Employees of the School Board are ineligible to be appointed to the SEAB as are any persons who have had prior involvement with the matter under appeal. This would include any person who has acted as a support to the parent. However it is common for parents to select someone from a local parent association. School boards commonly select a supervisory officer, either retired or employed by another Board. The chair is selected by the two nominees or, if they cant agree, by the Ministry.

O.Reg. 181/98 sets out the requirements for notice of the SEAB meeting and requires the SEAB to meet and complete its task within a tight time frame: The SEAB must meet with the parties (that is, the parents and board staff, usually led by the superintendent responsible for special education) within 30 days of the appointment of the SEAB chair and must render its decision within 3 days of the end of the meeting. However, the parties can consent in writing to extend, these time lines. Given that this time frame usually arises at the end of the school year after IPRCs which have been held in May or June, it can often be a challenge to meet time lines before the summer. It appears to be the Ministrys view, however, that the summer school holidays do not count as days, so that SEAB need not be held during the summer months when staff is not available.

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The SEABs meeting is an informal one and the SEAB has no subpoena power but only issues invitations to attend. It is obliged to ensure that the views and information which bear on the appeal have been sufficiently presented.

The SEAB has no powers under the Statutory Powers Procedure Act and, in fact, it does not decide the appeal per se. The SEAB has one of two choices, both of which end up in recommendations to the School Board. If the SEAB agrees with the IPRCs decision, it can recommend that the IPRCs decision be implemented. If it disagrees, it can make a recommendation to the School Board with respect to identification or placement or both. It should be noted that this recommendation may be for a different identification or placement than that sought by the parents. Like the IPRC, the SEAB has no power to make any decision respecting programs and services, but is not precluded from commenting on these.

Within 30 days of receiving the SEABs decision, the School Board must make a decision on the action it will take and give notice in writing to the parents and Principal of that decision. This action is not limited to the recommendations of the SEAB and in theory the Board may decide to do something entirely different. Although the School Board is not required to hold a hearing, it is exercising a power of decision in considering the SEABs recommendation and the parent should be given an opportunity to make a written or oral submission in response to the SEABs recommendations and any recommendations by School Board staff.

Special Education Tribunal

If the decision of the School Board is not satisfactory to the parent, the parent has the right to appeal to the Special Education Tribunal. The Tribunal is established under s. 57 of the Education Act. Its members are appointed by the Government, including a chair who is appointed for a fixed term and a small group of sides people who are also appointed for fixed terms. Two sides people will sit with the chair in each case.

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A parent may appeal to the Tribunal if dissatisfied with the Boards decision

Hearings by the Tribunal are formal hearings, conducted under the Statutory Powers Procedure Act. The Tribunal has recently published rules which will govern its processes.

The process before the Special Education Tribunal is complex. In order for a party to effectively negotiate their way through it especially since the Tribunal itself does not include any lawyers -- knowledge of the process of litigation and the Statutory Powers Procedure Act is necessary. Where possible, school boards and parents should both be represented by counsel.

The Tribunal will require the parents, prior to the hearing, to provide a written statement of the parents position setting out the elements of the decision which the parent disagrees with and the remedy sought by the parents. The School Board will be obliged to provide a written response.

Evidence is put before the tribunal by witnesses testifying under oath or affirmation to tell the truth. The Tribunal may receive hearsay evidence and usually does so, with the recognition that it will be obliged, at the end of the hearing, to determine what, if any, weight it will give to the evidence. As the appellant, the parents will usually proceed with their case first, followed by the school board, with a final right of reply by the parents. However, if the school board raises a preliminary objection which must be dealt with first by the SET (eg. where a jurisdictional objection is made), a hearing to deal with the preliminary objection will be held first and the order of proceeding will be reversed.

The Tribunal has jurisdiction to either dismiss the appeal, in which case the decision of the Board stands, or to grant the appeal and make such order as it considers necessary with respect to identification and placement. This order can be for something other than

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argued for by the parents and there are several instances where Tribunals have ordered a placement other that the placement argued for by either the Board or the parents.

Judicial Review by the Courts

Section 57 of the Education Act stipulates that the decision the Tribunal decision on the appeal is final and binding on the parties. No further appeal lies from the decision of the Tribunal.

However, in the event either party believes that the Tribunal has committed an error of law or acted beyond its jurisdiction, that party may apply to the Divisional Court to Judicially Review the decision. It is important to note that a Judicial Review is not an appeal. The Court will not rehear the matter and, unless the Tribunal has made an error of jurisdiction in the evidence which it has considered, will accept the findings of fact which the Tribunal has made. The Court will intervene in the Tribunals decision if it determines that the Tribunal has exceeded its jurisdiction by making a decision which it had no power to make or it committed a procedural error which impacted on the fairness of the hearing. The Court will also intervene if the Tribunal has acted contrary to the Charter of Rights and Freedoms.

The decision of the Divisional Court may be appealed to the Court of Appeal with the leave of that court, and from that court a final appeal extends to the Supreme Court of Canada, again with leave.

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