This is the third Daily Dawg entry this week about the One Size Fits All Answer—the proper response to any parental request about the content of the child’s IEP. So far we have mentioned two parts of the OSFAA. Today, we introduce parts three and four. Here’s the entire OSFAA with an emphasis on parts three and four:

Let me take that to the ARD Committee. The ARDC will review your child’s evaluation data TO DETERMINE IF THAT IS SOMETHING THAT YOUR CHILD NEEDS IN ORDER TO RECEIVE A FAPE (Free Appropriate Public Education).

The third component of the OSFAA is NEED and the fourth is FAPE. If the evaluation data shows that the requested service is needed for the child to receive FAPE, the ARDC should incorporate it into the IEP.

So let’s consider what happened in Minnesota. Recall the facts: the case involved a 15-year old student who is non-verbal, has a significant cognitive impairment and functions in the range of an 18-month old. She has seizures continually and is particularly unable to function in the morning. Everyone agreed that her school day should start at noon but there was disagreement about when it should end. The district proposed 4.25 hours per day, which was less than the 6.5 offered to general students.

The court held that the shortened day offered to this student was not “appropriately ambitious” and thus failed to satisfy the FAPE standard. The court affirmed the hearing officer’s order that the school provide instruction in the home from 4:30 to 6:00 pm.

You might think that this was a simple matter of equality. The general education students got 6.5 hours of instruction a day, and the district offered this girl only 4.25. But that was not the basis for the court’s decision. Instead, the court thoughtfully considered the reasons for the shortened day that the district offered, but noted that:

None of these reasons is based on an individual assessment of AJT’s needs as required by the IDEA, under which extended days “are appropriate in certain circumstances and their location is not confined to the school day or a school setting.”

What were those reasons? The court described them as “shifting explanations” that revealed that the school prioritized its staffing schedule over the needs of the student. The school’s first explanation was: “we’ve never before provided both homebound and in-school services to a student.” This comes under the category of “we’ve never done that before.” To which the proper response is “So?”

The second explanation was that state law did not require the district to serve the student beyond the normal school day. Maybe so. But IDEA is a federal law.

The third explanation was the district’s fear of “setting a precedent.” In other words, if we do this for this student, we will have many more making similar requests. I’ve heard school officials express this fear often. But it’s mistaken. If the district had granted the parent’s request, the only “precedent” it would be setting is that it followed the data to provide what this particular student needed in order to provide FAPE. In other words, the “precedent” would be that the district complies with the law. That’s a good precedent, not a bad one.

I hope you can see how the OSFAA fits this situation. I’m sure the folks in Minnesota felt that they were basing their decision on the needs of the student, but the hearing officer didn’t buy it and neither did the court. The court applied the OSFAA, and concluded that the evaluation data showed that the student needed the extra hours of service in order to receive the FAPE to which she is entitled.

Keep in mind that parents and schools will often disagree about the response to the OSFAA. “Need” and “FAPE” are ambiguous and subjective terms. But if we employ the OSFAA properly, we are at least approaching the issue in the right way.

The case is Osseo Area Schools, ISD No. 279 v. A.J.T., decided by the federal district court for the state of Minnesota on September 13, 2022. It’s cited in Special Ed Connection at 81 IDELR 256.

DAWG BONE: THE OSFAA: ARDC. EVALUATION DATA. NEED. FAPE.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

IT’S ZOOMING WITH THE DAWG DAY!! PLEASE JOIN ME AND SPECIAL GUEST HALEY TURNER FOR A PREVIEW OF THE WG HR SYMPOSIUM AND DISCUSSION OF THE INS AND OUTS OF INVESTIGATIONS!

Yesterday I introduced the OSFAA—the One Size Fits All Answer to questions about the content of a student’s IEP. There are four parts to the OSFAA. Yesterday we looked at the first part, which tells the parent who is going to answer the question. The ARD Committee will do that. The ARDC is the only entity in the district with the legal authority to decide what goes into an IEP.

Now let’s introduce the second component. Parent asks for some change to the IEP or placement, and we respond:

“Let me take that to the ARD Committee. THE ARDC WILL REVIEW THE EVALUATION DATA….”

Evaluation data must be the basis for every part of the child’s IEP. Evaluation data is to the ARDC as evidence is to the jury in a trial. All decisions about instructional arrangement, frequency and duration of related services, annual goals…all of that should be based on the evaluation data that describes the unique circumstances of the student. Evaluation data includes formal testing, grades, progress reports, teacher recommendations, independent evaluations, and parent input.

The Minnesota case that illustrates the OSFAA involved a 15-year old girl who is non-verbal, has a significant cognitive impairment and functions in the range of an 18-month old. She has seizures continually and is particularly unable to function in the morning. Everyone agreed that her school day should start at noon but there was disagreement about when it should end. The district proposed 4.25 hours per day, which was less than the 6.5 offered to general students.

The court held that the shortened day offered to this student was not “appropriately ambitious” and thus failed to satisfy the FAPE standard. The court affirmed the hearing officer’s order that the school provide instruction in the home from 4:30 to 6:00 pm.

The district offered various reasons in support of its proposed schedule, but here’s where the school lost sight of the OSFAA. Key Quote:

None of these reasons is based on an individual assessment of AJT’s needs as required by the IDEA, under which extended days “are appropriate in certain circumstances and their location is not confined to the school day or a school setting.”

See what I mean? The district’s proposed schedule of 4.25 hours of instruction per day was not based on the child’s evaluation data. It was based on something else. What would that be? Tune in tomorrow.

DAWG BONE: OSFAA SO FAR: “LET ME TAKE THAT TO THE ARDC. THE ARDC WILL REVIEW YOUR CHILD’S EVALUATION DATA….”

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: the rest of the OSFAA

There is a One Size Fits All Answer to any question about the content of a student’s IEP. Since everything in special ed land ends up as an acronym or initialism, we will refer to this as the OSFAA. The OSFAA tracks the requirements of the law, and recognizes that special education, compared to all other aspects of school operations, is upside down.

When parents, teachers, or taxpayers raise questions about how things are done at school, or why we don’t do things differently, the typical response involves a deferral to the administrator in charge of that area. Or to the board and its policy. Examples:

*A parent complains that the girls’ basketball team has uniforms that are not as nice as the boys. How do we respond? “Let me talk to the athletic director about that.”

*A parent is unhappy with where the bus picks the child up. Response: “I’ll talk to the transportation director about that.”

*Taxpayers don’t like the tax rate. “That’s set by the school board. You need to talk to them.”

*Parent wants a book removed from the library: “We have a policy about that. Let’s take a look at it.”

In contrast, we need to respond differently if the parent wants an addition to the IEP, such as a one-to-one aide, or a new piece of assistive technology, or an increase in speech therapy. In those cases the proper response should begin with:

LET ME TAKE THAT TO THE ARD COMMITTEE

In fact, that’s the only legally defensible response. No one other than the ARD Committee can decide what goes into the child’s IEP. Special ed is upside down. Decisions are not made by the highest ranking administrator. They are made by the child’s IEP Team, the ARD Committee.

A recent case from Minnesota provides a great example of how things can go south when educators forget to use the OSFAA. The folks in Minnesota did take the matter to the IEP Team, and so they got the first part of the OSFAA correct, but they failed the rest of the test. I’ll tell you more about it tomorrow.

DAWG BONE: OSFAA FIRST COMPONENT: THE ARDC WILL DECIDE THIS.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: OSFAA Component Two

This may be the first time in the history of the Daily Dawg in which V-Day falls on Toolbox Tuesday. What a dilemma! I’m committed to addressing special education discipline on Toolbox Tuesday, but V-Day always calls for some special attention to matters of romance and all of the legal problems it can lead to: sexual harassment and whatnot.

How to combine these two?

Perhaps we should think about the application of Tool #1 to our love lives. Tool #1 is the development and implementation of a BIP--a Behavior Improvement Plan. It’s all about what the school plans to do FOR a student. It’s not defined in federal law, but it’s described as positive behavioral interventions, strategies and supports.

I have one major suggestion for you, Loyal Daily Dawg Readers. Do not write a BIP for that Special Someone in Your Life. Do not attempt to suggest behavioral improvements that your Loved One should make. Do not offer interventions, strategies or supports, no matter how wise and well intentioned they are.

The BIP is for you. What interventions, strategies and supports can you provide for yourself, with the goal of eliminating or reducing inappropriate behaviors and replacing them with loving and supportive behaviors? How can you be a better Valentine?

As I’ve done Toolbox Training I’ve told many of you the story of the writing assignment I was given as a sophomore in high school, and the positive impact it’s had on me. I was at a boarding school where we were sometimes assigned to serve on the dishwashing crew. Father McGlinchey informed the ten members of the crew that our loud singing was bothering the nuns who cooked for us. We were to report the next day after classes for our punitive assignment.

Father McGlinchey dictated the following, which we ten were required to write 500 times:

This stupid assignment, which is a monumental waste of time, should be a reminder to me that I lack respect for the rights of others. Furthermore, as a result of this stupid assignment, when I am called upon to perform duties in the kitchen in the future, I will endeavor to do so in a more gentlemanly fashion.

500 times we wrote that. Now, more than 55 years later I am pleased to let you know that Father McGlinchey’s “stupid assignment” continues to leave its mark. I have learned my lesson. When people see me performing duties in the kitchen these days they are apt to remark “My my—see how he washes those dishes in a gentlemanly fashion.”

However, I find that my OTL (One True Love) still sees room for improvement. So I know what needs to go into my V-Day BIP: wipe up those crumbs after breakfast. Keep the white towels unsmudged. Keep those copper-bottomed pots hanging in the sunlit pantry in perfect symmetry.

I suggest you follow my lead and you, too, will enjoy a Happy Valentine’s Day.

DAWG BONE: HAPPY V-DAY TO ALL!

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: we introduce the OSFAA….

WE’RE ZOOMING WITH THE DAWG THIS THURSDAY AT 10! FREE FOR ALL LOYAL DAILY DAWG SUBSCRIBERS. COME JOIN ME AND SPECIAL GUEST HALEY TURNER!

As a lawyer representing school districts I have heard many accusations of wrongdoing by school personnel. Usually these accusations are factually incorrect. Often they arise from a misunderstanding, a miscommunication, and a lack of trust. Sometimes they are true.

According to the federal court in Tennessee, someone in the Loudon County School District forged the parent’s signature on the student’s IEP. Yikes. That goes on the Sheesh-O-Meter. The parent went to a lot of trouble to prove that this actually happened. It was the testimony of the forensic document examiner that convinced the court.

As Loyal Daily Dawg Readers know, schools are required to conduct special education programs in a way that solicits and values parental input. The legal obligation is to provide “meaningful parent participation.” Needless to say, when you forge the parent’s signature on an IEP, you have failed to live up to that standard.

That was just one of two problems for the district. The other was the failure to inform the parent that the child’s teacher did not have the appropriate endorsement to serve in special education. However, the court concluded that neither infraction caused educational harm to the student. Therefore, the parent was not entitled to compensatory services. The court invited the parent to file a Motion seeking recovery of attorneys’ fees. I’m guessing a check will be written.

It's A.W. v. Loudon County School District, decided by the federal court for the Eastern District of Tennessee on September 28, 2022. It’s cited in Special Ed Connection at 81 IDELR 281.

DAWG BONE: DON’T EVEN THINK ABOUT IT.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!

I heard a wise man once say “Variety is the spice of life, but routine is the essence.”  It made my heart soar like an eagle, seeing as how I live by routines.  I have been accused of being in a rut.  But I don’t see the problem with having the same breakfast every day, as long as you enjoy it.  What’s wrong with using DayTimers when the rest of the world has moved on to iPhone calendars?  They’ve served me well since 1979.  I don’t see how those electronic thingamajigs you have to poke on are an improvement over the paper and pen variety of calendar. 

Where would we be without our familiar routines? Rather than seeing them as boring, we should celebrate them as a part of the very infrastructure of our lives.  There is no way I would be churning out the Daily Dawg on a regular basis if not for the routine I have developed. I expect I’m preaching to the choir on this topic, seeing as how teachers understand the need for routine in the classroom.  But that’s not just for the benefit of the children. The teacher needs the routine as just as much.

My brother once remarked that variety was overrated. He said it was better to find out what you like and stick with it.  He was specifically referring to food, but this attitude was also apparent in the tan jacket he wore every day for every occasion for a couple or three decades.

I mention all this today, mid-February, because we are now knee deep in the long slog of the school year.  Spring break is still a long way off and June won’t be here for a year or so.  Stick to your routines, Loyal Daily Dawg Readers.  Work your routine and your routine will serve you well.

DAWG BONE: THOUGHT FOR THE DAY: VARIETY IS THE SPICE OF LIFE….BUT YOU CAN’T SURVIVE ON SPICE.Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

HB 655 addresses the sad reality that some students engage in “habitually violent behavior.”  The bill defines this term as “a pattern of violent behavior, such as assault or behavior that results in the hospitalization of a student or school district staff member, that causes more than one incident within a grading period during a school year.”

The bill authorizes schools to place such a student “in a virtual setting” for “a prescribed period determined by the district.”  This should set off your special education alarm bells.  For students receiving special education services, district administrators do not have the authority to do something like this. It can only be done by the student’s ARD Committee. However, the author of the bill, Rep. Steve Allison (Republican, San Antonio, former school board member) was wise enough to take that into account in Section (b)(4) of the bill. 

That section requires that the ARD Committee (or 504 Team) must meet to discuss the “habitually violent student” and must “determine an appropriate educational setting for the student….to ensure the student receives a free appropriate public education as required under the IDEA.”

That language probably preserves the validity of this bill, as it reflects what federal law requires.  ARD Committees already have the power and the duty to provide FAPE to “habitually violent” students.    However, the next section of the bill adds an innovative wrinkle.  If the ARD Committee decides that “remote, therapeutic, or residential placement” is the “least restrictive environment” for the student:

the district is entitled to receive from the state reimbursement for past expenses and appropriate funding for future expenses for the provision of services to the student.

That would help.  Small districts in remote parts of the state in particular can be overwhelmed trying to appropriately serve habitually violent students. Spreading the financial risk of dealing with such students across the state would be helpful. 

DAWG BONE: HB 655: ONE TO WATCH.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: how much variety do you have in your life?

I’m not sure which is more surprising: that the Mississippi hearing officer conducted 14 days of hearing, or that after all that time the result was overturned by a federal court. 

The school was struggling to serve a 15-year old student with autism and an IQ of 42. The student was aggressive and violent and the district was focusing more on stopping his aggression than on meeting academic needs. In the mediation of the case, the district acknowledged that it was not capable of providing FAPE.

That’s a tough one, but as Loyal Daily Dawg Readers know, tough situations do not allow cutting corners with the law.   In October, 2017, in response to numerous instances of hitting staff and students, the IEP Team reduced the student’s services to one hour per day, four days a week in an administrative office.  Surprised that the parent was unhappy with that?  I didn’t think so. 

The due process hearing officer conducted a 14-day hearing, which earns this case a place on the Dawg’s Sheesh-O-Meter.  After all of that evidence, the hearing officer thought that four hours of education a week was just fine.  However, the federal district court disagreed with that assessment. 

One hour per day, four days a week, in an administrative office…and the court holds that this fails to provide FAPE. Does that surprise anyone?  I didn’t think so. But what is surprising is the court’s rationale. The decision is based on 1) the elimination of any P.E. course; and 2) the lack of progress. There is no discussion in the opinion of the yawning gap in the sheer hours of education the district provided.  I’m guessing that the general population in Mississippi receives somewhere close to 30 hours of instruction per week. This severely disabled student is getting four.  It shouldn’t take 14 days of due process hearing to figure out that this is a denial of FAPE.

It's Reynolds v. George County School District, decided by the federal court for the Southern District of Mississippi.  It’s cited at 81 IDELR 282.

There is an interesting bill in the Texas legislature that would provide some help to districts in cases like this. I’ll tell you about that tomorrow.

DAWG BONE: FOUR HOURS A WEEK WILL RARELY CUT IT.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: have any “habitually violent” students?

This is the final Toolbox Tuesday devoted to the DOE’s Q and A regarding student discipline. Today we look at Section L, which is about the responsibilities of state agencies.  Under IDEA the state agency, T.E.A., has the overall responsibility to ensure that a FAPE is available to all eligible children.  To carry out that responsibility, T.E.A. and the other state agencies monitor, review, hear complaints, set up due process procedures, and collect data. Boy Howdy, do they collect data.

If you get frustrated with the sheer volume of data you are required to maintain and report, don’t blame the good folks working at T.E.A.  This all comes from the federal government. Moreover, the purpose of all that data collection is a good one—it reveals problems that need to be addressed.

Discipline is an area of particular concern, as revealed in the answer to Question L-1: 

The inappropriate use of suspension, expulsion, and other exclusionary removals significantly limits the ability of children with disabilities to receive educational benefit consistent with their IEPs. Therefore, SEAs should pay particular attention to LEA and Statewide discipline data and discipline policies, procedures, and practices when exercising their general supervisory responsibilities.

It's all required by IDEA, including the disaggregation of data to explore possible “significant disproportionality” in the way discipline is applied to students based on race and ethnicity.

There is one final section in the Q and A but it’s a Glossary and is not deemed Dawgworthy. So we’re done with this. Next Tuesday we return to telling you about interesting cases that reflect how the ten tools in The Toolbox work in practice.

DAWG BONE: THE CASES ARE MORE INTERESTING.  SO STAY TUNED.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: a lengthy due process hearing in Mississippi….

Texas has a law that limits student participation in school-sponsored athletics to teams that are for the sex identified on the student’s birth certificate.  T.E.C. 33.0834. If your birth certificate says you were born a boy, then you may not participate in girls’ teams, regardless of transgender status, puberty blockers, or later alterations to your birth certificate. 

West Virginia has a similar law, the Save Women’s Sports Bill.  A federal judge in West Virginia has ruled that the state’s law is constitutional and does not violate Title IX.  Nor was it so motivated by animus toward transgender individuals that its legality was threatened.

Advocates for transgender athletes often claim that bills like this are strictly driven by animus toward the very existence of individuals who are transgender.  In this case that argument made its way into the court’s decision.  The plaintiff alleged that the bill was “part of a concerted, nationwide effort to target transgender youth for unequal treatment.”  The plaintiff cited the social media posts of one legislator in which he allegedly “liked” posts that advocated physical violence against girls who are transgender, and compared them to pigs.  The court cited a 1973 SCOTUS case for the proposition that a law would be unconstitutional due to “animus” only if “the reason for its passage was the ‘bare desire’ to harm transgender people.”  U.S. Department of Agriculture v. Moreno, 413 U.S. 528, 535.  That was not the case here:

While the record before me does reveal that at least one legislator held or implicitly supported private bias against, or moral disapproval of transgender individuals, it does not contain evidence of that type of animus more broadly throughout the state legislature.

There is considerable litigation on this issue with regard to the Equal Protection Clause and Title IX, and it is likely that courts will come to different conclusions until we get a SCOTUS decision. In the meantime, officials at the UIL and in local schools can cite this case as support for the legality of our statute. 

It’s B.P.J. v. West Virginia SBOE, decided by the federal court for the Southern District of West Virginia on January 5, 2023.  It can be found at 2023 WL 111875.

DAWG BONE:  WE’RE SURE TO SEE MORE BILLS ADDRESSING SIMILAR ISSUES THIS SESSION. STAY TUNED.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!