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.
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