Lewisville ISD was involved in a federal court case last year over special education, much of it focused on how the district responded to the parent’s request for an IEE (Independent Educational Evaluation).  The district approved the request, thus agreeing to pay for it, but then balked when the private evaluators quoted their fees. The district had adopted Operating Guidelines that set out maximum amounts that it would pay for an IEE, and in this case the parent had contacted two private evaluators, both of whom quoted fees above the maximum.

Three quick points: First, it’s OK for you to have limits on what you will pay for an IEE as long as it leaves the door open for the unusual case in which there is a good reason to pay more than the maximum.  In special education, there always has to be room for that unusual, special situation.

Second, if you adopt cost ceilings, do so on the basis of factual research of typical costs in your part of the state.  Call around, and find out what qualified people are charging. In the Lewisville case, the district pegged the ceiling at 35% over the Medicaid rate. The court found that to be reasonable, as there were plenty of evaluators who could do an IEE within those limits.

Third, whether you pay for an IEE or not, you should consider it at an ARD meeting.  In this case, I was particularly struck by the fact that the district made this easier for everyone by creating a single “side-by-side” document that summarized the recommendations of the three evaluations the ARD was considering—two IEEs along with the district’s evaluation.  This facilitates meaningful parent participation.  It also makes it easier for all members of the ARD Committee to see clearly where the evaluators agree, and where they disagree.

The case is Shafi A. v. Lewisville ISD, decided by the U.S. District Court for the Eastern District of Texas on December 15, 2016. We found it at 69 IDELR 66 and 2016 WL 7242768.

Nona Matthews and Meredith Walker of our firm’s Irving office handled this case for the district.  Nona and the crew in Irving are excellent resources for you if you want to develop good Operating Guidelines regarding IEEs.

DAWG BONE: EVERYBODY LIKES A GOOD SIDE-BY-SIDE.

 File this one under: SPECIAL EDUCATION

Tomorrow: Cinco de Mayo celebration leads to a federal court case!

As you know by now, the Supreme Court has decided a case that clarifies the meaning of the term “free appropriate public education”—FAPE.  It was a unanimous decision, written by the Chief Justice.  Many have proclaimed that the Court has set a new, higher standard that schools will have to satisfy.  In certain parts of the country, that’s true. But not here. Let me explain.

The original FAPE decision was the Rowley case decided 35 years ago.  In that case SCOTUS held that Amy Rowley was not entitled to the best possible education, but only one that was “reasonably calculated” to enable her to receive “some educational benefit.”

That’s a very vague standard, and courts have struggled with it ever since. Different Circuit Courts have adopted different standards, leading to inconsistency across the country. That’s why the SCOTUS decided to take up a case from Colorado involving a student with autism named Endrew F.

Amy Rowley and Endrew F. are very different kinds of students.  Amy was hearing impaired, very bright, and served in the general education classroom. She was expected to achieve at grade level, and she did. In fact, she was in the upper half of her class.  The Supreme Court noted that Amy was moving along from grade to grade, right on time. Therefore, the Court reasoned, she was receiving “some educational benefit.”   Importantly, the Court limited its ruling to the specific facts of the case before it.  It left to another day a decision about what “some educational benefit” means for kids who are not served in the general education classroom.

That would be Endrew.  Endrew is not on grade level and likely never will be.   What does “some educational benefit” mean for a student like Endrew?  The 10^th Circuit, relying on a prior opinion written by Judge Neil Gorsuch, said that FAPE required a level of benefit that was “merely more than de minimis.”  That means just a tad more than an insignificant amount. That’s a pretty low bar.

In fact, it is too low according to the Supreme Court.  The Court said that FAPE requires a level of services that are “reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.”

So the Supreme Court has rejected the 10^th Circuit’s view of FAPE for the lower functioning student, but not the 5^th Circuit’s.  The 5^th Circuit never has adopted a “merely more than de minimis” standard. Instead, we have the case of Cypress Fairbanks ISD v. Michael F., which establishes a four-part test for FAPE.  Our courts and hearing officers have applied that test since 1997 when Michael F. was decided. The 5^th Circuit said that an IEP must 1) be individualized on the basis of the student’s assessment and performance; 2) be administered in the least restrictive environment; 3) include services that are provided in a coordinated and collaborative manner by the key stakeholders; and 4) produce positive academic and non-academic benefits.

The bottom line on the Endrew case for Texas educators is that it is consistent with the standard we have been using since 1997.   In particular the first part of the 5^th Circuit’s test (“individualized on the basis of assessment and performance”) is consistent with the Supreme Court’s language (“…make progress appropriate in light of the child’s circumstances”).   ARD Committees should continue to focus on the four-part test, asking themselves: in light of this child’s circumstances, including the data we have regarding the student’s assessment and performance, is this IEP likely to enable the student to make an appropriate amount of progress?

The case of Endrew F. v. Douglas County School District RE-1 was decided by the U.S. Supreme Court on March 22, 2017.

DAWG BONE: ARD COMMITTEES SHOULD BE ASKING THEMSELVES: IS THIS CHILD MORE LIKE AMY OR ENDREW?

File this one under: SPECIAL EDUCATION

Tomorrow: nitpicking over the length of the blade on a knife.

I don’t think “Jane Doe” is the girl’s real name, but that’s how it reads in the court case.  When she was in the 2^nd grade, the school district in Maine identified Jane as having a learning disability and started providing special education.  But the court tells us that “as a bright, hard-working student with dedicated parents, Jane improved her reading skills over the years, and she continued to perform well in school, as well as on standardized tests.”

She did so well that the district dismissed her from the special education program. This was 7^th grade.  One year later, the parents asked the district to put her back in special education.

This dispute was over one of the fine points of special education eligibility.  Can you be “learning disabled” if you have deficits in “reading fluency” but your overall academic performance is very strong?  We know that students can get very good grades and still be eligible for special education due to a sensory disability, such as being blind or deaf. But can you be classified as “learning disabled” when you are achieving quite well?

The 1^st Circuit Court of Appeals says that you can be.  The court held that a deficit in “reading fluency” alone can be enough for the ARD Committee to determine that you have a “learning disability,” even when that reading fluency problem is masked by straight A’s and good scores on statewide tests.

However, the court cautioned that there still must be evidence that the child “needs” special education services.  The remaining question is: “needs” special education services for what?  Obviously, Jane Doe does not need special education services to improve overall academic performance.  But if the purpose of special education services is to help the student improve in the more specific area of concern—here, reading fluency—then Jane might “need” special education.  This case does not categorically answer that question.

So where does that leave us?  The main point of today’s entry is to encourage districts not to automatically disregard eligibility just because the student is doing well in school. Can you have a high IQ and still be eligible for special education?  Yes.  Can you be in the gifted program and also eligible for special education?  Yes.

Like everything else involving special education….oh, wait….what I’m about to say should go in today’s Dawg Bone!

This case is Doe v. Cape Elizabeth School District, decided by the 1^st Circuit Court of Appeals on August 5, 2016.  We found it at 68 IDELR 61 and 832 F.3d 69.

DAWG BONE: WHEN DISCUSSING SPECIAL EDUCATION NEVER SAY “NEVER” AND ALWAYS AVOID SAYING “ALWAYS.”

 File this one under: SPECIAL EDUCATION

Tomorrow: Toolbox Tuesday tackles Section 504.

The Toolbox is an all-day training program aimed at campus administrators and special education staff.  The Toolbox holds ten “tools” that are designed to empower you to provide appropriate services to every student, while maintaining safety for all.  Today, a few words on Tool #9—Leadership at the Non-Consensus ARD Meeting.

You have to be very skillful to use this tool well.  When the ARD Committee is not coming to consensus, the situation is fraught with the possibility for a breakdown in communications.  Emotions rise. Tensions rise.  Perhaps we don’t have much experience in this situation.

Let’s remember the basics about ARD meetings.  First, there are only two parties at the meeting. There might be a dozen people, but there are only two “parties.” There is the school; and there is the parent or adult student.  Second, the meeting is run by the school. Federal law tells us that the school district is responsible for initiating and conducting these meetings. So it’s not the student’s meeting and it’s not the diagnostician’s meeting. It’s the school district’s meeting.

Put that together and I think you will conclude, as I have, that the “administrative representative” of the school district is the logical person to provide leadership at a fraught meeting.  He or she should be the one to communicate clearly to the parent that the team does not appear to be in consensus.  The meeting cannot go on forever. There comes a time when someone needs to steer the conversation to closure, with a clear road map of what happens next.

In the Toolbox training we talk about what this leadership looks like and how it should be exercised.

Interested in a Toolbox training?  Just let me hear from you!

DAWG BONE: OUR MEETING, BUT LET’S NOT BE OBNOXIOUS ABOUT THAT.

 File this one under: SPECIAL EDUCATION

I spoke yesterday at the annual UT School Law Conference, which is going on today also.  My topic was about what the general school attorney needs to know about special education. The first slide points out that “there is no escaping special ed!”

I think that’s the truth and it becomes truthier every year. (Yes…I know that’s not a real word).

We used to have lawyers in our firm who would run to the hills to avoid a phone call that included words like “ARD” or “manifestation determination.”  But that’s becoming close to impossible.  The students in special education are a small minority of your students, but they produce a disproportionate percentage of legal concerns.  All of the lawyers need to know the basics.

So that’s what my 30-minute talk was about—the basics of discipline, parent rights, a few words on the recent controversy over the 8.5% issue, and some suggestions for the proper role for an attorney.

I think the most important thing I told those lawyers yesterday was that the lawyer serves the school district well when he or she advises them to do the right thing for the student. Special ed lawyering is not about cutting corners or finding clever ways to avoid legal responsibilities. It’s about making sure the client is in full compliance. The best way to do that is to do the right thing.

Maybe a good thought to end the week with.

DAWG BONE: IN SPECIAL ED, DO THE RIGHT THING.  IN GENERAL ED, DO THE RIGHT THING. IN LIFE, DO THE RIGHT THING.  YOU GET THE IDEA.

 File this one under: SPECIAL EDUCATION

A Pennsylvania charter school shut down due to financial problems. Parents of two students sought a due process hearing, alleging a denial of FAPE. They named as defendants both the defunct charters, and the state agency. The hearing officer ruled in favor of the parents.  Here, the parents sought attorneys’ fees from the state agency. The agency filed a Motion to Dismiss, arguing that it did not deny the student’s FAPE, and was not a “guarantor” of charter school solvency. The court refused to dismiss the case, and made this observation:

As the Charlene R. Court [an earlier case with similar facts] noted, Pennsylvania has encouraged the growth of charter schools, which are considered to be public schools and LEAs under the IDEA.  These charter schools, unlike public school districts, “can simply disappear,” leaving students with no recourse other than suing the PDE and the Commonwealth to vindicate their rights.

Texas, likewise, has encouraged the growth of charter schools, treats them as public schools, and has seen a few go bust in the middle of the school year.  Perhaps this could happen here as well.

The case is R.J. v. Rivera, decided by the U.S. District Court for the Eastern District of Pennsylvania on August 16, 2016.  We found it at 68 IDELR 101.

DAWG BONE: IT IS THE STATE THAT HAS THE ULTIMATE RESPONSIBILITY TO ENSURE THE PROVISION OF FAPE.

File this one under: SPECIAL EDUCATION

Tomorrow: Toolbox Tuesday!!

There has been a lot of hullabaloo about the decline in the number of students receiving special education in Texas and across the country.  But guess what—the numbers are going up.

Special ed numbers hit their peak in 2004.  That was also the year when Congress re-authorized the law, putting an emphasis on concerns over disproportionality and the need to make sure that students receive solid teaching before they are identified as having a disability.  For the next seven years the numbers went down. The total drop was 93,000, with over half of that attributable to Texas (53,221).

Then they started to go up again. The numbers have gone up in each of the past four years. In the latest year for which numbers are available, (2015) Texas added 10,482 students in special education—an increase of 2.6%.

If you look at the 11-year trend from 2004 to 2015, Texas ranked 10^th in the percentage drop.  Rhode Island led the nation with an astonishing 28.3% drop in the special education population.  The drop in Texas was 11.3%.  NOTE: This is not the percentage of kids served in special education. This is the percentage drop from 2004 to 2015—the rate at which the numbers went down.

Other jurisdictions that lowered their numbers at a faster pace than Texas were: The District of Columbia, Hawaii, Iowa, Louisiana, Maine, Michigan, Missouri, and New Hampshire.

This data comes from the U.S. Department of Education, as reported at LRP’s Special Ed Connection.

DAWG BONE: IT’S NOT A NUMBERS GAME.  ELIGIBILITY SHOULD BE BASED ON AN INDIVIDUALIZED EVALUATION.

File this one under: SPECIAL EDUCATION

We continue to see many arguments over whether or not a student should be declared eligible for special education services.  Most of those arguments are about “educational need.” Under IDEA standards, a student can have all of the characteristics of a particular disability, and yet, not be eligible because the student does not “need” special education services.

Clear Creek ISD placed Devon in special education during his first year of high school.  But by April of his sophomore year, the school was ready to dismiss him from special education.  The parent disagreed with that decision, but did not take it to a due process hearing….yet.  Devon received no special education services during his junior year. However, the issue of his eligibility was revisited by the ARD Committee in April of that year. Again, the ARDC determined that the boy was not eligible. The parent disagreed.  In the spring semester of his senior year, Devon’s attendance at school took a nose dive.  In April the parent requested a due process hearing.

The hearing officer ruled in favor of the school, and now the federal court has affirmed that ruling. The magistrate’s recommendation in this case, ultimately approved by the court, outlines a complicated fact situation involving extensive correspondence between the father and the school.  Emails from various staff members are quoted throughout the magistrate’s opinion and they consistently demonstrate flexibility, courtesy and a willingness to accommodate parental concerns.  Furthermore, they consistently show that the teachers viewed Devon as a successful student.  The court noted that the input of the teachers carries more weight than the opinions of outsiders:  Key Quote:

Importantly, the determination of educational need was not for an outside provider to make but was within the judgment of the ARDC…..The observations of teachers who spend time daily with Devon in the educational setting are more reliable regarding educational need than those outside providers who base their opinions on isolated in-school observations and parent-provided information and documentation.

The parent complained that the teachers relied solely on Devon’s grades, but the court did not see it that way:

During his junior year, as discussed by the ARDC, Devon’s grades improved in spite of his dismissal from special education and even though he had not accessed any generally available support services. The ARDC discussed Devon’s above-average scores on the PSAT, his progress on the Distinguished Achievement Plan for graduation, and positive teacher reports regarding academics.

Contrary to Plaintiff’s suggestion, the ARDC did not focus exclusively on Devon’s grades but properly also considered achievement tests, teacher recommendations, and social interactions.

The case is Devon L. v. Clear Creek ISD.  It was decided by the U.S. District Court for the Southern District of Texas on September 7, 2016.  We found it the magistrate’s recommendation at 116 LRP 38829, and the court’s brief opinion at 68 IDELR 166.

DAWG BONE: THE BEST EXPERTS IN DETERMINING “EDUCATIONAL NEED” WORK FOR YOUR SCHOOL DISTRICT.

File this one under: SPECIAL EDUCATION

Tomorrow: Valentine’s Day!! Let me tell you about my new girlfriend….

A recent decision from the federal court in Beaumont illustrates what much of special education litigation is about these days. It’s not about services to the student. It’s about attorneys’ fees.

The basic rule is that parents who prevail in a special education due process hearing are entitled to then recover their attorneys’ fees.  In this case, the parents won the due process hearing with regard to some of the key issues.  The district chose not to appeal the decision, and thus was obligated to provide the relief that the hearing officer ordered.  The subsequent lawsuit, then, had nothing to do with services to the student.  It was about how much the lawyer should be paid.

The parents’ attorney, Dorene Philpot, sought recovery of fees in federal court in the amount of $101,843.44.  The district was not willing to fork over that amount, and thus the case ended up in front of Judge Marcia Crone.

Judge Crone held that the parents had indeed “prevailed” in the hearing and thus, were entitled to recover attorneys’ fees. But she reduced that award from $101,843 to $6,500.  In part, this was based on a finding that the reasonable hourly rate was $250 per hour, rather than the $295 Ms. Philpot sought.  But the main reason for the reduction was based on the fact that the district had made a written settlement offer prior to the due process hearing that offered more relief than the parents obtained from the hearing officer. Thus the judge disallowed recovery of any fees after the date of the settlement offer. Not only did the district’s offer provide more relief to the parent than she ultimately obtained, it also offered more to the attorney.  The offer included a payment of $10,000 to Ms. Philpot.

In short, the judge concluded that the parent—and her attorney—would have been better off with the district’s settlement offer than with what they got from the hearing.

The case is a reminder of the wisdom of districts obtaining a cold hearted legal analysis of their case before going to hearing.  Here, the district anticipated some legal exposure and wisely put an offer on the table in an effort to resolve the matter.  Everyone would have saved a lot of time and money if that offer had been accepted.

Nor did the district’s efforts to resolve this case end with that offer. The court noted:

Further, since this case was filed, the evidence and the record clearly show that the District has acted in good faith and attempted multiple times to resolve this case, including engaging in mediation and making repeated settlement offers after the case was filed in this court, including substantial settlement offers for attorneys’ fees far above the $6,500 awarded by the court.

FOOTNOTE: The court understands that Plaintiffs were not required to accept a settlement offer. The settlement offers are referenced because Plaintiffs have repeatedly alleged in their submissions to the court that the District has “stonewalled” them; however, Plaintiffs’ allegations of stonewalling are not supported by the evidence before the court.

 The case is I.W. v. Hardin-Jefferson ISD, decided by the federal court for the Eastern District of Texas on January 3, 2017.

DAWG BONE: A GOOD SETTLEMENT OFFER CAN SAVE TIME AND MONEY.

File this one under: SPECIAL EDUCATION

Tomorrow: Toolbox Tuesday!! We discuss assault leave.

Last week the Supreme Court heard oral arguments in a special education case.  The issue before the court is: what does “FAPE” mean?  How do we know that the school has offered an IEP that meets the standards in the law?

SCOTUS addressed this issue years ago in the case of Board of Education v. Rowley.  In that 1982 decision, the Court construed our federal special education law for the first time.  The decision told us that schools were not required to maximize a child’s education, but had to offer a set of services that would confer some educational benefit.  How much is “some”?  Hmmm.

In the Rowley case, the Court specifically noted how difficult it would be to come up with a single standard that applied to the wide spectrum of students with disabilities. Therefore, the Court confined its analysis to kids like Amy Rowley—students with disabilities (Amy was deaf) who were bright enough to be served in the mainstream, general education classroom. With students like that, the Court said, moving from grade to grade on time with the other students was good enough.  If the student passed from grade to grade, the student was receiving FAPE. The Court deferred to a later day any decision about what “some benefit” means for students not capable of meeting grade level standards.

Now that day has come.  The case before the Court involves a student with autism who is not on grade level and likely never will be.  For a student like that, what does “some benefit” mean?

The lawyers for the student point out that IDEA has been significantly changed since 1982 when the Court last considered this question.  It now includes requirements that all students should be learning “the general curriculum.” It requires planning for postsecondary life.  It requires almost all students to be included in the state’s accountability program at grade level. In other words, the argument is that the early version of IDEA only required that schools open the door to students with disabilities; now it requires a higher level of services.

The lawyers for the school district argued that the Rowley standard has never been overturned by Congress, the definition in the law of “FAPE” is the same now as it was then.

The justices asked a lot of good questions.  They obviously were well prepared to hear these arguments, and were struggling with what precise words would create a proper standard. The problem inherent in this situation is the utter ambiguity of any standard anyone offered. There is much talk in the oral argument about the meaning of words like “meaningful” “significant”  “some” and “more than de minimis.”  Whatever emerges from this case is likely to be a murky, imprecise, ambiguous label that will do little to provide clarity.

We’ll keep you posted on this.  Wanna read the transcript of the argument?  Here it is:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-827_gfbh.pdf

The case is Endrew F. v. Douglas County School District RE-1. 

DAWG BONE: WE MAY HAVE TO UPDATE THAT OLD “CHEVY v. CADILLAC” ANALOGY.

File this one under: SPECIAL EDUCATION

Tomorrow: Our new president….