The power of the press. Less than one month after publication of a front page story in our state’s largest newspaper, the federal government has effectively ordered T.E.A. to drop one of the key indicators by which special education programs are measured. As many readers of this publication know, T.E.A. has included an “indicator” in the PBMAS system—no more than 8.5% of your students should be in your special education program. For years, some people have wondered if that specific number might cause districts to deny services to kids who need them. Two years ago a disability advocacy group complained about the 8.5% figure, but the complaint got little traction. Now the media has the story…and everything has changed.

Let’s acknowledge that the story in the Houston Chronicle has brought into the daylight an issue that has been subterranean until now. Outside of special ed types, very few people knew about the PBMAS, Indicator 10, the 8.5% figure, or the way that special ed numbers have declined over the past five years. Now, we are all talking about it. Good.

This is a classic “teachable moment” for educators. T.E.A. will certainly abandon Indicator 10, thus relieving districts of any outside pressure with regard to the proper identification of students.

So let’s double down on our efforts to get this right. If a parent asks about special education services—regardless of how the parent asks about it—the school should respond in one of two ways. Either we obtain parental consent and promptly begin the process of obtaining a full, individual evaluation. Or we decline to do so by providing the parent with two documents: Prior Written Notice of Refusal to Evaluate; and a copy of the Notice of Procedural Safeguards. What we don’t do is to put the parent off by telling the parent that their referral is premature, or we are just now beginning RTI efforts. A parent referral is never premature; and RTI should not delay that referral.

Our firm does a lot of training on this issue, and would be happy to help you out. Let us know if we can help.

DAWG BONE: WATCH FOR CHANGES IN THE PBMAS.

File this one under: SPECIAL EDUCATION

Tomorrow: Results of the Law Dawg’s Annual Survey of Educators—the Presidential Poll!!

By now, many of you are working in school districts that have installed video surveillance cameras in the self-contained special education classrooms. This is now legally required in Texas, when a request from a proper person is received. The purpose of the law is to protect the safety of the kids in those self-contained classrooms. Those kids are typically among our most vulnerable.

The Dawg hopes that the cameras advance the cause of safety. But let’s all remember that there are other, more basic steps that all districts can take to guarantee student safety.

The most important thing the district can do is to be very careful about who they put in charge of that self-contained classroom. We should put as much care into the selection of the Life Skills teacher as we do the head football coach.

Second, we should support that teacher with adequate resources to do the job properly. This means personnel (aides), training, equipment and supplies.

Third, administrators should keep an eye on things. I am certain that the vast majority of teachers in self-contained classrooms maintain a loving, nurturing, safe classroom. However, there are cases that end up in litigation over student injuries inflicted by teachers or aides in the self-contained classrooms. Sometimes a bad situation is allowed to fester in that classroom because no one is monitoring. So we encourage administrators to pay attention. Drop in. Make yourself a presence in that classroom.

Fourth, administrators should pay particular attention to the paraprofessionals who work in the self-contained classroom. Many cases that end up in litigation fall into a category that I call “aide v. teacher.” The aide comes forward after a period of time and confides in someone at the school that she is troubled by some of the teacher’s practices. Sometimes, the aide has kept silent about this for over a year. It would be wise for campus principals to maintain a climate of openness whereby aides, or others, feel free to report things that they find troubling.

Technology is a wonderful thing, but it is no substitute for a good teacher, supported by strong and wise leaders.

DAWG BONE: GET THE BEST TEACHER YOU CAN FIND FOR THE MOST CHALLENGING ASSIGNMENTS.

File this one under: SPECIAL EDUCATION

Tomorrow: A suit against a kindergarten teacher.

In a special education case recently decided by a federal court in Texas, the parent’s attorney argued that the private evaluations of the child were superior to the evaluation conducted by the school. Why?  Because the people who did the private evaluation on behalf of the Ziggurat Group had doctorates. The school’s evaluation was conducted by a Ph.D.-less Licensed Specialist in School Psychology.  The court did not view the credentials of the experts to be the key issue:

And Plaintiff has cited to no authority to show that the Court (or the SEHO) [Special Education Hearing Officer] should give greater weight to an expert opinion merely because of the degree held by that expert. The Ziggurat Group’s opinions are entitled to no greater deference than the opinions of [the LSSP] or other District officials.

Background to this: the hearing officer (Lucius Bunton) put into his ruling that the district’s evaluation was “more substantial, thorough, and credible than those of the Ziggurat Group.”  This finding was instrumental in Mr. Bunton’s ruling in favor of the district. Thus on appeal, the parents argued that the hearing officer had it wrong.  People with Ph.D.’s, they argued, were superior experts, entitled to greater deference.

The court first noted that the parent had identified no legal authority to back up this argument.  Beyond that, the court also noted previous cases that put more emphasis on contact with the student as opposed to degrees and credentials:

School personnel often have greater contact with a handicapped child than does a treating physician.  Teague ISD v. Todd L., 999 F.2d 127 (5^th Cir. 1993)

Indeed, many courts have recognized the deference that should be given to a school district’s professionals in considering whether a school district has complied with the IDEA. See M.S. v. Poway USD, 2013 WL 4401673…(noting that “any differences of opinion between [the plaintiff’s] expert and the [school district’s] expert, without something more such as….discriminatory intent…[is] insufficient to overcome that deference”;

Then there was DiRocco v. Board of Education of Beacon City School District, 2013 WL 25959:

Finding that “the [c]ourt is not at liberty to favor [the] opinion…of a privately hired expert, over the deference that should appropriately be afforded to the [school] [d]istrict in matters of educational policy.”

Here’s one more from E.S. v. Katonah-Lewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010:

The mere fact that a separately hired expert has recommended different programming does nothing to change [the]…deference to the district and its trained educators.

Thus the court concluded that the hearing officer was well within his authority to find the school’s evaluation to be the better one.  The parent’s claim of a denial of FAPE fell short, as did the request for reimbursement for private school tuition.

The case is T.C. v. Lewisville ISD, decided by the federal court for the Eastern District of Texas on March 18, 2016.

DAWG BONE: IT’S GOOD TO HAVE A DOCTORATE. BUT IT DOESN’T AUTOMATICALLY MAKE YOUR EVALUATON THE BETTER ONE.

File this one under:  SPECIAL EDUCATION

READERS!! The Walsh Gallegos Student Code of Conduct for 2016-17 is now available! Make sure to get your district prepared for next school year with the latest version of this essential product.  Our web-based, user friendly product provides students and parents clear information while giving administrators a critical tool for dealing with difficult issues. 

Subscribe to the Student Code of Conduct, or renew your subscription today!

TOMORROW IS TOOLBOX TUESDAY.  WE LOOK AT A CASE INVOLVING HANDCUFFS ON A SEVEN YEAR OLD.

Rockwall ISD has prevailed in a special education case decided by the 5^th Circuit. The court concluded that the parents had taken an inflexible “all or nothing” approach at the ARDC meeting.   Dissatisfied with the district’s proposed placement of their daughter, the parents sought reimbursement for private school tuition. They won their case before the special education hearing officer, but Rockwall appealed into federal court. The federal district court ruled for the district, and now the 5^th Circuit has affirmed.

I know that educators get tired of lawyers harping on the importance of written documentation. But this case is a great example of how important the written record is. The ARD minutes, testimony, letters and emails from the district enabled the court to conclude that the district took “a collaborative approach” to the IEP process, whereas “the record shows that the Parents had no intention of continuing with the ARDC unless RISD approved their proposal.”

The court’s opinion notes that the parents and their advocate frequently voiced their questions and ideas during the meeting, and that “RISD officials repeatedly revised the language of their proposal to incorporate the parties’ suggestions.”   From reading this opinion, I get the impression that the district was listening, open minded and flexible.  The court concluded that it was the parents who refused to return to the table unless the district agreed to their plan.  Districts are sometimes accused of going into ARDC meetings with a “predetermined” mindset. This case shows us that “predetermination” is a two-way street.

The case is Rockwall ISD v. M.C., decided by the 5^th Circuit on March 10, 2016. We found it at 2016 WL 929445.

DAWG BONE: PREDETERMINATION WORKS BOTH WAYS. 

T.E.A. is planning to post proposed rules pertaining to SB 507, the controversial “cameras in the classroom” bill, this Friday.  Educators should carefully review these proposed rules and make comments on them during the public comment period, which will run until May 9.

The proposed rules largely repeat what is in the statute, but they do offer clarifications on a number of key points.  Here are some highlights:

1. The law allows a “parent” to request the installation of a camera. The proposed rules define “parent” to mean a parent of a student who is placed for at least 50% of the day in the type of setting to which the law applies--a self-contained classroom or “other special education setting.” Note that the statute could have been interpreted to apply to any “parent.” The proposed rules narrow that. The rules also clarify that a student in a special education setting who is 18 years old could qualify as a “parent.”

2. The law allows a “staff member” to request the installation of a camera. The proposed rules define “staff member” to mean only those teachers, related service providers, aides and administrators on the campus where the self-contained classroom or “other special education setting” is located. The statute could have been interpreted to apply to any staff member. The proposed rules narrow that.

3. “Self-contained classroom” is defined as the term is used in the Student Attendance Accounting Handbook.

4. “Other special education setting” is also tied into the SAAH and basically applies to residential facilities and separate campuses.

5. The law allows certain individuals to have access to the video if an “incident” documented by the recording has been reported to the district as a complaint. The proposed rules define “incident” to be alleged abuse or neglect as those terms are used in the Family Code; or, more broadly, “an event or circumstance that….allegedly occurred” in a setting in which video surveillance is conducted.

6. The proposed rules say that the law does not apply to TSBVI, TSD, Juvenile Justice facilities, state agencies that provide special education or any district, charter or private school that your school contracts with.

7. The proposed rules say that complaints alleging that the district has violated the law should go through district grievance procedures, rather than the special education due process system.

8. The proposed rules say that video surveillance is required only during the regular school year—not ESY.

9. Districts and charters will be required to adopt policies and procedures addressing the implementation of all this.

Meanwhile, Commissioner Morath has asked for an “expedited” Attorney General’s Opinion concerning SB 507.  Let’s hope the AG does, in fact, render an opinion in an expedited fashion.  Presumably, the AG’s Opinion could lead to some tweaks in the rules eventually adopted.

Watch for the posting of the proposed rules on Friday, April 8^th.

DAWG BONE: STAY TUNED!

The 5^th Circuit has issued an important decision regarding IEEs for parents of students with disabilities.  Under our federal special education law, IDEA, parents are entitled to an IEE if they disagree with the evaluation conducted by the school.  Parents frequently request that the IEE be conducted at school district expense.  Lawyers have typically advised school administrators that when parents request a publicly funded IEE, the school must either pay for the IEE or request a due process hearing to show that its own evaluation is appropriate.  Reluctant to invoke the formal, expensive and legalistic due process mechanism, schools more often than not simply pay for the IEE.  Now, the 5^th Circuit is telling us that it doesn’t have to work that way.

The court pointed out that districts can decline to pay for an IEE for two possible reasons: first, because its own evaluation is appropriate; or second, because the IEE fails to satisfy the district’s criteria.  The court held that the district is required to initiate the hearing process ONLY if it relies on the first reason.  If, on the other hand, the district objects to paying for the IEE due to its non-compliance with the district’s criteria, it can simply refuse to pay for it. This puts the burden on the parent to request a due process hearing.

The court affirmed the notion that an IEE must satisfy the district’s criteria for such an evaluation. However, it put a twist on that by holding that “substantial compliance” is all that is required.  School district lawyers argued that this puts us on the proverbial “slippery slope” toward the day when districts will be required to reimburse parents for shoddy or skimpy “evaluations.” The court tried to assuage these fears:

Although the slippery slope is always a concern when the law accepts a less-than-perfect compliance, we find the risk acceptable here, given the strong statutory interests favoring a substantial compliance standard and the use of such standards elsewhere in the IDEA case law. We do not suggest that “a couple of paragraphs” or a “prescription pad” notation will now pass muster.  Indeed, the determination will necessarily turn on the particular facts and agency criteria at issue in each case. “Substantial compliance,” allowing reimbursement in this context, means that insignificant or trivial deviations from the letter of agency criteria may be acceptable as long as there is substantive compliance with all material provisions of the agency criteria and the IEE provides detailed, rigorously produced and accessibly presented data.

This is an important precedent for us in Texas.  Directors of special education will want to take a fresh look at their IEE criteria and procedures.  If you have a request for IEE reimbursement, by all means talk to your school district lawyer about how to proceed in light of Seth B. v. Orleans Parish School Board. The case was decided by the 5^th Circuit on January 13, 2016.  We found it at 116 LRP 1452.

DAWG BONE: TWO WAYS TO DENY IEE REIMBURSEMENT. 

A federal district court has reversed the erroneous decision of a Texas special education hearing officer, confirming, once again, that there is nothing wrong with centralizing services for low-incidence populations.  The case involved W.M., a middle school student.  Everyone agreed that W.M. was properly placed in a LIFE skills unit, a self-contained classroom. The argument between the school and the parents was about the location of services.

W.M. lived in Hardin-Jefferson ISD, one of three districts that participated in the Gulf Coast Co-op for the provision of special education services.  The problem was that there were not enough kids who needed placement in LIFE skills to justify such a unit in each district. Thus the Shared Services Agreement inked by the three districts stated that the middle school LIFE skills classroom would be in Hamshire-Fannett.  W.M. would have to ride a bus 18 miles to get to school.  His parents disagreed with this arrangement and requested a due process hearing.

The special education hearing officer ruled in favor of the parents.  There are four factors courts and hearing officers apply in determining whether or not a district has provided a student a FAPE (Free Appropriate Public Education). The hearing officer ruled in favor of HJISD on three of the four. But based solely on one of those four factors—LRE (Least Restrictive Environment), the hearing officer ruled that the district denied FAPE by offering services to W.M. only at Hamshire-Fannett.

The district appealed that decision and obtained a reversal of it. This not only validates the district’s actions. It also blocked the parents’ request for payment of their attorneys’ fees.  The federal court noted that the hearing officer went wrong by getting “location” and “placement” confused.  They are distinct things, but the hearing officer treated them as the same. In this case, the “placement” was a self-contained LIFE skills unit. The “location” was Hamshire-Fannett Middle School. The “location,” or as some courts have put it, the “site selection,” was not in the student’s home school district.  But parents do not have as much say-so on “location” as they do “placement.”  This is not a new concept.  The federal judge cited 5^th Circuit authority from 20 years ago in support of her decision:

That parents must be involved in determining “educational placement” does not necessarily mean they must be involved in site selection….Schools have significant authority to determine the school site for providing IDEA services.  Flour Bluff ISD v. Katherine M. 91 F.3d 689 (5^th Cir. 1996).

This distinction between “placement” and “site selection” enables districts to allocate resources properly.  That 5^th Circuit case, for example, was about hearing impaired students.  There are not that many of them.  To serve such students appropriately, the law recognizes that school districts must manage their scarce resources efficiently.  Providing high quality services at a central location is usually the better choice.

The case is W.M. v. Hardin-Jefferson ISD and Gulf Coast Special Education Cooperative. It was decided by Judge Marcia Crone of the Eastern District of Texas on January 13, 2016.

DAWG BONE: REMEMBER THIS AT YOUR ARDC MEETINGS: DECIDE PLACEMENT FIRST—THEN LOCATION.

We did not expect to get a turkey question today. We were anticipating a groundhog query. But be that as it may, let us discuss turkeys in the context of The Toolbox.

The Toolbox is a set of 10 “tools” available to schools when dealing with disruptive students with disabilities. Tool #1, which we emphasize is the most important tool, is the development and implementation of a BIP—a Behavior Intervention Plan.

In The Toolbox training, we encourage you to be creative in crafting a BIP for a student. So we would rarely rule something out from the get-go. But a turkey?  Really????

Perhaps this parent read the story of the Delta passenger who was allowed to bring a turkey on board the airplane.  Here’s the picture:

But it’s important to point out that airlines have to be more like Noah than schools do. The federal Air Carrier Access Act requires carriers to permit an “emotional support or psychiatric service animal” on board.  The regulation excludes snakes, other reptiles, ferrets, rodents and spiders, but most everything else is permissible, including turkeys.  A “service animal” for school purposes can only be a dog or a miniature horse.

But you know the general rule with special ed. Take it to the ARDC and ask: is the turkey necessary for the provision of FAPE?  We kinda doubt it. We think turkeys are not NECESSARY for anything except Thanksgiving. But with special ed, you never know.  So take it to the ARD. Serve turkey sandwiches.

DAWG BONE:  WE THOUGHT OF MANY MORE TURKEY-RELATED WISECRACKS, BUT DECIDED TO STAY ON THE HIGH ROAD TODAY….MOSTLY.

So I went to see the dermatologist yesterday for my annual checkup.  I’m happy to report that all is well.  No sign of skin cancer.  No need for another nosectomy like I had last year.

But as the doc was closely examining my neck, she remarked “Hmmmm….I think that’s nothing to worry about.  Just some redundant skin.”

REDUNDANT SKIN!  What an outstanding euphemism!!  I must remember this the next time someone suggests that I’m developing a double chin. Or just getting kinda fat.  “No, I will say.  But I do have some redundant skin.”

Euphemisms are handy. They frequently enable us to avoid or minimize awkward moments in polite company. But euphemisms can cause trouble also.  I heard a story of an ARDC meeting where the participants danced around the student’s inappropriate sexual behavior.  No one wanted to call it what it was, especially with the parent present. So the student’s BIP just indicated that there were some “new behaviors” that needed to be worked on.

That would not be a good use of a euphemism.  When talking to parents about their kids’ performance and behavior in school, we need to shoot straight.  So if the student is exposing himself in class, say so.  If the student regularly uses the F-word (there’s a nice euphemism), say so—don’t say he uses “inappropriate language.”  No one know what that means. We have an obligation to be direct and honest with parents. Failure to be honest and direct is disrespectful to parents, and in some instances (i.e., ARDC meetings) it might even have legal consequences.

DAWG BONE: “REDUNDANT SKIN” RANKS RIGHT UP THERE WITH “YOUR CHILD’S SKILLS ARE EMERGING.”