We have various ways of making this point—evaluation data is absolutely crucial in special education.  Evaluation data is the rudder that steers the ship.  Evaluation data is to the ARD Committee what evidence is to the jury.  This point was hammered home yet again in a decision from the 9^th Circuit.  The court held that the district committed a procedural error that resulted in a denial of FAPE and a failure to provide meaningful parent participation in the IEP process.  The court faulted the district for not evaluating for autism when the student showed symptoms of the condition.  Following 9^th Circuit precedent, the court was emphatic:

So that there may be no similar misunderstanding in the future, we will say it once again: the failure to obtain critical and statutorily mandated medical information about an autistic child and about his particular educational needs ‘renders the accomplishment of the IDEA’s goals—and the achievement of FAPE—impossible.’  (Emphasis in the original).

The court cited earlier 9^th Circuit cases for the notion that a student “must be assessed by a school district, when the district has notice that the child has displayed symptoms of that disability.”  Key Quote:

…if a school district is on notice that a child may have a particular disorder, it must assess that child for that disorder, regardless of the subjective views of its staff members concerning the likely outcome of such an assessment.  That notice may come in the form of expressed parental concerns about a child’s symptoms….of expressed opinions by informed professionals,….or even by less formal indicators, such as the child’s behavior in or out of the classroom.  A school district cannot disregard a non-frivolous suspicion of which it becomes aware simply because of the subjective views of its staff, nor can it dispel this suspicion through informal observation.

 The case is Timothy O. v. Paso Robles USD, decided by the 9^th Circuit on May 23, 2016.  We found it at 67 IDELR 227, and it is now officially cited at 822 F.3d 1105.

DAWG BONE: TWO, FOUR, SIX, EIGHT….LET US NOW EVALUATE

File this one under: SPECIAL EDUCATION

Tomorrow: David Sedaris, a teacher of Dutch ancestry, and a Christmas tradition you may not have heard of.

On Tuesdays around here we like to put the spotlight on The Toolbox.  This is a full day training program that our firm provides, focusing on the more challenging behaviors we sometimes see from kids with disabilities.

In the Toolbox training we talk a lot about BIPs and other means of encouraging appropriate student behavior. Often, this involves counseling. And that leads to today’s topic: Is there a difference between “counseling” and “special ed counseling”?

Looking into this recently, I discovered that our laws never use the term “special education counseling.”  However, our laws do refer to two different types of counseling: there is “counseling” and then there is “counseling as a related service.”  I expect when people refer to “special ed counseling” they are referring to “counseling as a related service.”

Counseling as a related service is available under federal law (IDEA) just as any other “related service.”  That means that the services are “required to assist a child with a disability to benefit from special education.”  34 CFR 300.34(a).

But students with a disability can also receive general counseling.  Consider a student with a disability who is pregnant.  Our state laws authorize counseling for that student.  She does not need counseling to benefit from instructional services. She needs counseling to cope with this new and scary reality in her life.  The same might be true for a student whose parents are getting divorced, or the student whose father just got incarcerated.

Take a look at your local policy.  Many of you have adopted a version of EJ Local that authorizes counseling to deal with school attitudes, self-confidence, healthy relationships, life satisfaction and other worthy objectives.  None of these are directly tied to a need to benefit from the special education instruction services offered by the school.

So the ARDC should decide if counseling is needed in order to benefit from the special education services. If so, the IEP should reflect that the student will receive “counseling as a related service.”  That also means that the IEP should specify the frequency, duration and location of services.   But whether “counseling as a related service” is needed or not, the student remains eligible for general ed counseling services, just like any other student.

DAWG BONE: AS USUAL, IT COMES DOWN TO THE ARD COMMITTEE’S CALL.

File this one under: SPECIAL EDUCATION

Tomorrow: Can the middle school have a Gay-Straight Alliance club?

Parents are entitled to “meaningful participation” in the ARDC process, and have a voice in every component of a student’s IEP.  So when a parent is enthused about a specific reading program, and wants the district to use it, the other members of the ARDC should listen, and ask some good questions.  What about this program sounds good?  Why does the parent believe that it will be beneficial? Does the parent have personal experience with this program?  What has the parent read about it?

Members of the Committee should ask other questions as well: What does the research tell us about this program?  Have we used it before? Is it similar to programs we already use?

Notice that when you are discussing what reading program to use, you are not talking about the child’s present levels of performance, the annual goal, short term objectives, performance criteria or measuring stick.  In other words, you are not talking about the things that the law requires in an IEP. You are talking about a teaching methodology, and the general rule is that the educators decide on methodology.

However, when it comes to legal issues and choice of methodology, there are two mistakes that schools sometimes make. The first mistake is to not listen, not take the parent’s preference into account.  That might be viewed as denying meaningful participation. The second mistake is to specifically include in the IEP the method that the parent requested, and then not use it.  That might be viewed as a material failure to implement the IEP.

That’s what happened in a recent case from Maine.  The court held that the district unilaterally decided not to provide the specific reading program that was called for in the IEP. The court held that this was a material failure to implement the IEP, even though the student made progress with the method that the district used. The district argued that this was a methodology dispute and the parent does not get to dictate the method. The court agreed with that general proposition, but noted that in this case the specific reading program was incorporated into the IEP. The program was SPIRE: Specialized Program Individualizing Reading Excellence.

The case is Ms. M. v. Falmouth School Department, decided by the federal district court for the State of Maine on May 31, 2016.  We found it at 67 IDELR 265.

DAWG BONE: IF YOU SPECIFY A METHOD IN THE IEP….USE THAT METHOD!!

File this one under: SPECIAL EDUCATION

Tomorrow: The Bus Driver Blues

Not as long as the one in Missoula County, Montana.  The court tells us that the hearing lasted 15 days, involved 30 witnesses and 176 exhibits.  The hearing officer rendered a 60-page decision, which is way longer than most Supreme Court decisions.

It just shouldn’t take that long.  Our hearing officers in Texas do a good job of conducting hearings in an orderly and fairly efficient manner. But cases like this show how the system can get out of control.

The case is J.K. and J.C. v. Missoula County Public Schools, 68 IDELR 68 (D. Mont. 2016).

DAWG BONE: WATCH FOR CHANGES IN THE DUE PROCESS SYSTEM WHEN CONGRESS RE-AUTHORIZES IDEA.

File this one under: SPECIAL EDUCATION

Note to readers: I am aware that many of you are headed home for a few weeks.  The Daily Dawg will be published on Monday and Tuesday of next week for the benefit of you stalwarts still  manning or womanning your post.  Then we will also take a break, to return on January 3^rd. 

The special ed types out there may recall that the 2004 version of IDEA put in the requirement that the services in the student’s IEP should be supported by “peer-reviewed research to the extent practicable.”  There was much speculation about exactly what that would mean, and how it would be interpreted.

Twelve years later we can report that it comes up rarely, and when it does, courts usually cite the phrase “to the extent practicable” as particularly significant.  IEPs are not regularly being shot down because they lack “peer-reviewed research.”

That’s what makes L.M.H. v. Arizona DOE, 68 IDELR 41 (D. Ariz. 2016) particularly interesting. This is a rare case that relies on the “peer reviewed research” requirement to conclude that the district denied FAPE.  After rejecting numerous procedural complaints by the parent, and complaints about ESY, the court held that the district denied FAPE by failing to consider any peer-reviewed research.   Whether the student made progress or not was deemed irrelevant, as the IEP would be judged as of the time of its development, not afterward.  The parent had provided ASHA recommendations regarding speech therapy.  The court held that the district did not have to comply with the ASHA recommendations, but had to consider them or some other “peer-reviewed” research.

It’s always a good idea to “consider” whatever useful information you have and to be sure that the minutes of the ARDC meeting reflect that consideration.

DAWG BONE: LET’S HOPE SOMEONE IN YOUR DISTRICT IS KEEPING UP WITH THE RESEARCH!

 File this one under: SPECIAL EDUCATION

We take this opportunity to remind you that parents who prevail in a special education case are entitled to recover attorneys’ fees.  Those fees can add up.  In a case from Ohio, the parties are still wrangling over the amount of fees to be recovered.  The parents’ sought over $800,000. That’s a lot of attorney time, but you have to take into account that the case has gone on for years, including the latest decision by the 6^th Circuit Court of Appeals.

The appellate court was reviewing the work of the district court which had rejected that $800K request. Instead, the court held that the parents could recover only $327,941 (only?).  Now the appellate court has vacated any fee award.  This does not mean that the parents are not going to recover attorneys’ fees. They will recover fees because they successfully proved that the school district denied FAPE to the student by botching the transition plan.  The argument now is only over “how much?”  The court vacated the fee award because the lower court had not provided an adequate explanation for the reduction from $800k to $327k.

So the beat goes on.  Lawyers arguing over FAPE turns into lawyers arguing over attorneys’ fees and then lawyers arguing over the adequacy of an explanation.  Surely, there is a better way to handle special education disputes.

The case is Gibson v. Forest Hills Local School District Board of Education, decided by the 6^th Circuit on July 15, 2016. We found it at 68 IDELR 33.

DAWG BONE: ATTORNEYS FEES SPENT ON PREVENTION OF LEGAL PROBLEMS CAN OFTEN PREVENT THIS KIND OF MESS.

 File this one under: SPECIAL EDUCATION

Dear Dawg:  I hear that there used to be a time when almost all children were raised by two people, those being their biological parents. It is so much more complicated now.  We had an ARD meeting yesterday where three women showed up, all claiming to be the one who should be treated as the parent.

We had the biological mother. We don’t think that her relationship with the dad was ever formalized, if you know what I mean.  In fact, we’re not sure that “relationship” is the right word.  She left the scene very shortly after giving birth to the boy.  But she is the bio mother and no one questions that. So she claims priority based on the nine months of pregnancy, the many hours of labor and the pains of childbirth.

Then we have the current wife of the dad. I guess she qualifies as “stepmom.”  She claims that she’s the main one because she’s the only one who has actually married the father.  However, the two of them have not been together for quite some time and that’s because of…

The girlfriend.  She and dad have been living together “without benefit of clergy” as they say for several months.  And the kid lives with them.  So she claims priority because she’s the one actually giving the kid his Fruit Loops in the morning and tucking him in at night.

Dad steered clear of all of this. Smart fellow, that guy. But we have to sort this out. What do you say?  LONGING FOR SIMPLER TIMES.

DEAR LONGING:  First of all, if it’s Fruit Loops every morning, we think the GF is disqualified.  More to the point, however, there is actually a federal regulation that addresses your quandary.  34 CFR 300.30 defines the word “parent,” and in doing so, it creates a hierarchy of people who can be treated as “the parent.”

The stepmom is not a “parent” under this definition.  The definition includes “An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives…” Since the child is not living with the stepmom, she does not qualify.

The GF could qualify.  Although she is not a relative, the definition is not limited to relatives, and the child does live with her.  But you would want some written documentation to establish that she is “acting in the place of” the dad. And then, of course, there is the Fruit Loops issue to consider.

But the bio mom holds the aces here.  First of all, she is definitely a “parent” under the definition. Furthermore, the regulation anticipates exactly the kind of mess you are in, and provides guidance. It states that when two or more people are qualified to be the “parent” the biological or adoptive parent who is “attempting to act as a parent” should be treated as the parent, unless there is a court order to the contrary. You didn’t say anything about any court orders.  If nobody presents you with a court order that identifies them as the decision maker, then that bio mom is the “parent” for purposes of your ARD meeting.

Fortunately, you don’t have to sort out this tangled family mess beyond that, so try to avoid any discussion of who has the kid on Thanksgiving Day.

DAWG BONE: FEDERAL REGULATIONS ACTUALLY PROVIDE ANSWERS TO TOUGH QUESTIONS

 File this one under: SPECIAL EDUCATION

We usually talk about the Toolbox here on Tuesdays. The Toolbox is a one day training program focusing on services to students with serious behavioral issues.  We talk a lot about behavior plans.

The answer to today’s question is straightforward: you should revise a student’s BIP when it becomes clear that the existing BIP is not working. Oftentimes this becomes apparent when the student commits a serious violation of your Code of Conduct, one that might lead to a disciplinary change of placement.

But a case I bumped into recently reminded me that there are also other times when the ARD Committee should consider making some changes.   In Brown v. District of Columbia, a student was shot eight times, sustaining serious physical and emotional injuries. The court held that the district should have convened an IEP Team meeting to consider what changes this would require in his IEP. Not doing so deprived the student of FAPE.

I hope you don’t encounter anything quite that dramatic.  But the case is a good reminder that sometimes IEPs and/or BIPs should be revisited based on outside issues that may have an impact on the student.  This student committed no offense.  He was a victim. But because of the impact this traumatic event might have on his education, the court held that the IEP Team (ARDC) should have met to discuss this.

We found this case at 67 IDELR 169.  It was decided by the District Court for the District of Columbia.

DAWG BONE: DOCUMENT YOUR EFFORTS TO ADDRESS TRAUMATIC EVENTS THAT MAY AFFECT THE STUDENT’S EDUCATION.

File this one under: SPECIAL EDUCATION

Tomorrow: Can you be personally liable for violating FERPA?

According to the Pittsburg USD in California, young L.J. did not need special education services. The boy had a lot of problems, but his academic performance was good, and he was even making some progress on behavior. The district provided some assistance to help him along, but nothing that the district considered “special ed.”

The mother disagreed and requested a due process hearing. The administrative law judge agreed with the district. The boy was doing reasonably well with the general education assistance the district provided. He did not “need” special ed services, and therefore, was not eligible.

The mother disagreed with the administrative law judge, and appealed to the federal district court. That court agreed with the school district also.  L.J. was not eligible.

The mother disagreed with the federal judge, and appealed to the 9^th Circuit.  Now that court has reversed all of the previous decisions. In doing so, the court held that the services the district was providing were not general education assistance. The district was, in fact, providing “special ed.”

Now that’s interesting.  The educators who provided the services did not classify them as “special ed” but the court did.  This case is a wonderful illustration of how fuzzy is the line separating “special ed” from “general ed.” This is particularly so in the age of RtI.

The court identified four specific features of the services the school was providing that moved those services over the line into “special ed” territory.  They were:

*The district was providing one-on-one assistance with a paraprofessional;

*The district was providing specially designed mental health services, including Group and Individual Rehab, Group and Individual Therapy, Family Therapy, Collateral Family Group and Intensive Home-Based Services;

*The district provided “extensive clinical interventions” by a Behavior Specialist;

*The district provided accommodations, “such as persistent teacher oversight, additional time to complete classwork or tests, shortened assignments, discretion to leave the classroom at will” and “the option to complete classwork or tests in other rooms or with one-on-one support.”

Taken together, the court concluded that the district was already providing special education services, which explained why the boy showed some degree of progress.

You might think that when educators say, “Your Honor, those services are not ‘special ed’” that courts would defer to the judgment of the professional educators. But when terms like “special education” have a legal definition, it opens the door to this kind of judicial second-guessing.   This case nicely illustrates how that can happen.

The court ordered the district to develop an IEP for L.J. so that the services he is getting will be guaranteed.  The school district will owe a lot of attorneys’ fees on this one.  That persistent mother took the case all the way to the Circuit Court before she prevailed.

The case is L.J. v. Pittsburg USD, decided by the 9^th Circuit Court of Appeals on September 1, 2016.  We found it at 2016 WL 4547360.

DAWG BONE: EVEN IF YOU DON’T THINK IT’S “SPECIAL ED” THE JUDGE MIGHT THINK IT IS.  BE CAREFUL.

 File this one under: SPECIAL EDUCATION

A question came up at Region 6 when I was doing a Toolbox Training recently.  The question was: do these “tools” have any application to non-disciplinary situations?  They do!  Specifically, Tool #2 and Tool #3 can be applied outside of the disciplinary context.

Let me explain.  The Toolbox consists of ten “tools” designed to assist schools to serve students appropriately while maintaining safety and a healthy school environment.  The main focus of The Toolbox is to help you serve the particularly violent or seriously disruptive student.  Two of the tools involve an educational change of placement. Tool #2 involves a change to a more restrictive environment, done with full parental agreement. Tool #3 is also an educational change of placement, but this time done the hard way—without parental agreement.

Those two tools can also be used in cases that have nothing to do with discipline or improper behavior.  After all, they are both educational changes of placement, designed to improve educational services to the student.

Consider Melissa, a 4^th grader with an intellectual disability. Suppose that you began the year by serving Melissa in the mainstream, general education classroom all day.  The teacher implemented some classroom accommodations, and the inclusion teacher came by for 30 minutes a day.  But now it is late October, and the staff has reported that the arrangement is not working very well. Melissa is as sweet as they come, a soft spoken, polite and quiet child who never causes a disruption in the classroom. But she is just a lot lower in her functioning than we realized. We fear that she is not learning anything in this classroom, and needs a lot more focused attention to make meaningful educational progress.

You could consider a change of placement for educational reasons. In fact, you should consider doing something different. If she is not making progress, it’s time to do something.  You could, of course, find ways to beef up services to her in the mainstream setting. In fact, that is the preferred option. But there are other options.  You could propose a change to a more focused, more intensive, and more restrictive environment.  If you get parental approval of this change of placement, we call that Tool #2. If you proceed forward with your plan even when the parent disagrees with you, that is Tool #3.

If you want to know more about The Toolbox, let me know.  It’s a one-day program designed for campus administrators and special ed staff together.  Have Toolbox. Will Travel.

DAWG BONE: CHANGING PLACEMENT IS NOT ALWAYS ABOUT BEHAVIOR

 File this one under: SPECIAL EDUCATION