Tag Archives: Special Education

It’s Toolbox Tuesday! Tool #3 is about moving a student to a more restrictive environment. Isn’t that hard to justify?

The Toolbox is a set of 10 tools designed to help school administrators and teachers serve students with disabilities appropriately and safely, even when they present challenging behaviors.  Tool #3 is an Educational Change of Placement Without Parental Agreement.

Is it hard to justify such a thing?  Yes.  Tool #3 is the first of the ten tools that involves disagreement between the parent and the school.  We know that you work hard to maintain consensus with parents, as you should. But sometimes it becomes impossible to both serve the student appropriately, and maintain harmony with the parent. So Tool #3 is available in those cases.

Let’s consider a typical example.  Matthew is an 8-year old with an intellectual disability.  Matthew has been in the mainstream third grade classroom all year, with an inclusion teacher coming into the classroom for parts of the day to help him out.  Now it is late January, and the teachers who work directly with Matthew are all of the opinion that his current placement is not working out well.  He is falling farther and farther behind his peers in the mainstream, and his behaviors are becoming a major problem.  Parents of other students are calling to complain when they hear stories of Matthew’s classroom tantrums.  We feel that we have implemented his IEP and BIP faithfully. We have worked diligently to enable him to be successful in this mainstream classroom. But it’s not working, either for Matthew or the rest of the class.  The school decides to propose a change of placement—moving Matthew into the Life Skills class for about half of the day.

If the parent agrees with that decision, you are using Tool #2—an Educational Change of Placement with Parental Agreement.  If the parent does not agree, then you are using Tool #3.

The school should use this tool only when school staff feel strongly that they are doing the right thing.  The parent will be entitled to a due process hearing to challenge the proposed change of placement. The “stay put” rule will keep Matthew in the mainstream classroom while that hearing is conducted.  The school will need to convince the hearing officer that the change of placement is appropriate.  To do this, the school will need to produce evidence that 1) it made a good faith effort to serve Matthew in the LRE; and 2) there are services that can be provided in Life Skills that Matthew needs, and that cannot be provided in the mainstream.

DAWG BONE: DON’T USE TOOL #3 UNLESS YOU ARE SURE YOU ARE DOING THE RIGHT THING.

New Rules for Special Education!

The Commissioner has adopted new rules pertaining to special education that went into effect last Wednesday.  Among other things worthy of your attention, we would point out two highlights:

1. If the parent is “unable to speak English” written notices must be provided “in the parent’s native language, unless it is clearly not feasible to do so.”

2. It’s the IEP you have to translate for the parent—not the ARD meeting. The rules specify that “all of the text in the student’s IEP in English is accurately translated into the target language in written form. The IEP translated into the target language must be a comparable rendition of the IEP in English and not a partial translation or summary of the IEP in English.”

Here are the rules:

http://tea.texas.gov/About_TEA/Laws_and_Rules/Commissioner_Rules_(TAC)/Adopted/15_11_Adopted_Amendments_to_19_TAC_Chapter_89,_Subchapter_AA

DAWG BONE: MAKE SURE YOUR SPECIAL ED STAFF IS UP TO SPEED WITH THE NEW RULES.

Dear Dawg: Who do they think I am—Lance Armstrong????

Dear Dawg: I try to stay in shape, but you know….it gets tough as the years go by.  Motivation is tough.  Hell—just getting up in the morning is tough. So when the principal asked me to be Billy’s one-to-one “biking aide” I thought this might be just what I needed.  You see, I’m a teacher’s aide in the Rim of the World School District. We are located in the beautiful mountains of California and we pride ourselves on our Mountain Biking Team.  This is a very competitive activity around here.

This year we had a kid named Billy who wanted to participate.  Sweet kid—been here a few years and everyone loves him. Billy’s on the autism spectrum, and so everyone figured that being a part of the Mountain Biking Team would be good for him.  Only problem was that Billy needs an aide to be with him all the time—including on extracurriculars.

So the principal asked me to serve as the “biking aide.”  Sure, I thought!  The scenery around here is spectacular, as is the weather.  And how hard could it be, keeping up with Billy?

Well, it wasn’t so hard at first. But Billy applies himself to everything he does, and pretty soon, he was outpacing me.  I just couldn’t make it up some of the mountains, and even on the flat parts, Billy left me so far behind that I lost sight of him.  He got stronger. I got older.  He got faster.  I got fatter.

Now the parents are making a legal issue out of this. Can you believe that???? A LEGAL issue! They claim that the district is obligated to provide an aide “who can keep pace” with Billy.  Dawg, this kid is a very good bike rider. I’m not sure we have anyone who can keep pace with him.  Is this really something we have to do?  TAKING MY TIRED BONES TO THE HOT TUB RIGHT NOW.

DEAR TAKING MY BONES:  Funny you should ask. It turns out that your very school district was involved in a dispute just like that involving a student named Madison Meares.  The parents alleged that the IEP had not been properly implemented, seeing as how the district had run out of aides capable of keeping up with Madison on the mountain bike.

The court ruled for the district, though.  The court was not convinced that Madison’s IEP required an aide for extracurricular activities, but even if it did, the court held that the district provided aides who were adequately trained for the job.  Moreover, the court made this observation:

The Court questions how far Plaintiffs’ logic might be extended; if Madison was the preeminent mountain biker in Southern California, would the District be required to somehow locate a biking aide to keep pace?

So go soak in the hot tub and don’t worry about this one. The case is Meares v. Rim of the World School District, decided by the District Court for the Central District of California on August 13, 2015. We found it at 66 IDELR 39.

DAWG BONE: TEACHER AIDES HAVE TO BE TRAINED, BUT THEY DON’T ALWAYS HAVE TO BE IN SHAPE.

We are trying to get a student tested to determine eligibility for special education and the parent wants to sit in on the testing. Do we have to allow that?

The parent of a student in California asked to sit in and observe when the school conducted some testing of a student with a disability in connection with the three-year re-evaluation.  The school balked, citing concerns that the parent’s presence in the room would skew the evaluation.

So the mother asked for a one-way mirror enabling her to observe and listen, without actually being in the same room.  The school was OK with half of that request—it agreed to set up a way for the parent to see the evaluation, but not listen in.  Both parties dug in at this point. The parent never produced the child for the evaluation, and thus, it did not get done.

The parties ended up in litigation with the parent claiming that the school denied FAPE to the child by failing to conduct a thorough evaluation.  The school’s position was: how could we evaluate the child when the parent is placing unreasonable conditions on us?

The hearing officer and the federal court sided with the district on this one.  Key Quote:

The court finds that parents’ condition that they be allowed to see and hear the assessment was unreasonable, and they effectively withdrew their consent by insisting on that condition.  The [hearing officer] accurately concluded that the District’s failure to complete the required assessments was caused by Parents’ interference and denial of consent, and that the request to observe the assessment amounted to the imposition of improper conditions or restrictions on the assessments, which the District had no obligation to accept or accommodate.

It’s important to point out that the district refused the parents’ request not out of stubbornness or an attitude of “we’ve never done that before.” The district cited legitimate concerns about test integrity and security.  The district took a stance because it is the district’s responsibility to make sure that evaluation data is gathered properly. All decisions about IEP content and placement of the student must be based on evaluation data. Therefore, evaluation data must be valid and reliable.

The case is Student R.A. v. West Contra Costa Unified School District, decided by the federal district court for the Northern District of California on August 17, 2015. We found it at 66 IDELR 36.

DAWG BONE: SOMETIME THE INTEGRITY OF YOUR TESTING PROCEDURES IS MORE IMPORTANT THAN ACCOMMODATING PARENTAL REQUESTS.

Rule One: Don’t Make the Judge Mad

Maybe the case of Wood v. Katy ISD is finally over.  Perhaps now the parents of the student, who must be in his mid-20s, will quit arguing over the student’s IEP for 2006-07.  The federal district court in Houston ruled decisively in favor of the district on this one, in which the parents sought reimbursement for tuition at a private residential school in Vermont.

This special education case was decided by a special education due process hearing officer over six years ago, on February 7, 2009.  The IHO ruled for Katy ISD, and the parents appealed to federal court.  Now, at last, we have a ruling on that appeal. Again, the KISD prevails.

Our special education system is supposed to resolve disputes swiftly.  It makes little sense to get a ruling about an IEP from 2006 in 2015.  Much of the problem here seemed to stem from the complexity of the administrative record.  The judge found the administrative record voluminous and disorganized. She ordered the parties to file amended motions addressing two key issues, and to keep the paperwork to 50 pages or less.  One party complied with that order, the other did not. Here’s how Judge Melinda Harmon put it:

While KISD complied with the Court’s order, Plaintiffs’ submission is still voluminous, contains documents that are not part of the official administrative record, an absence of citations to the record to support their assertions, and irrelevant and/or incompetent summary judgment evidence. The Court does the best it can with the current record and again reminds the parties that it is not obligated to “sift through the record in search of evidence” to support a party’s opposition to a motion for summary judgment.

Suffice it to say that it’s not a good idea to irritate the judge.  The judge had good reasons for ruling for Katy ISD on this case. The evidence showed that the student consistently performed well, the district brought in respected experts to support its case, and all procedural requirements were satisfied.

But it didn’t help the parents’ cause that the judge was irritated with their lawyer.

The case is Wood v. Katy ISD, decided by Judge Harmon for the Southern District of Texas on September 30, 2015. We found it at 66 IDELR 158.

DAWG BONE: WHEN THE JUDGE SAYS “KEEP IT TO 50 PAGES OR LESS,” 49 WOULD BE A GOOD IDEA.

Got a Hard ARD coming up?

One of the fortunate things about living in Texas is that we have ARD meetings. The rest of the country, lacking in imagination, calls these things IEP Team meetings because that’s what the federal regulations call them.  Pish posh.  Here in the Lone Star State we are not encumbered by deference to things federal. We choose to call them ARD meetings.  Why?  Because we are Texas, that’s why.

I have heard some of you suggest that ARD stands for “Anguish Remorse and Denial.” Not true. The real meaning is “Admission, Review and Dismissal.” This is a sensible name for a group that does those three things—it admits students to special education services, it review progress, and sometimes it dismisses students. Of course, along the way it also develops IEPs, makes placement decisions and conducts manifestation determinations.

Sometimes ARD meetings can be challenging—thus the “Hard ARD.” ARD Committees address difficult issues, often in the midst of strong emotional currents and/or the threat of litigation.  Educators who participate try to serve the student well, maintain a good relationship with the parent, get the paperwork filled out properly, and comply with the law. Not easy to do all four of those things at the same time.

That’s why our firm is offering an audio conference on this topic: The Hard ARD and How to Handle It.  Attorneys Denise Hays and Charlotte Salter will provide insights and recommendations based on their many years of collective experience in this field.  I can guarantee you that this one will be practical and relevant, addressing the kind of situations you lose sleep over.

Sign up for the audio conference at the firm’s website: www.walshgallegos.com.  The Hard ARD audioconference is December 2 at 10:00 a.m.  Don’t miss it!

DAWG BONE: AUDIOCONFERENCE ON THE HARD ARD—DECEMBER 2!

Dear Dawg: Do we REALLY have to put a camera in every special education classroom when a single parent requests it????

The authors of SB 507 have written a letter to Commissioner Williams seeking to guide the Commissioner’s adoption of rules.  This is the bill that requires cameras to be installed in every “self-contained” classroom.  The bill states that the district is required to provide these cameras only upon request. But “request” from whom?

The exact language of the new law provides that the duty to record in the classroom arises “upon request by a parent, trustee, or staff member.”  Does that mean any parent in the district can request cameras district-wide?  Senator Lucio and Representative Senfronia Thompson, co-authors of the bill, have written to Commissioner Williams expressing their intent behind the term “a parent.” The legislators say that the term was intended to apply ONLY to a parent of a child in a specific classroom.  Thus if Mrs. Jones has a child in the elementary school “Life Skills” unit, and Mrs. Jones requests video surveillance of the classroom, the district would only be required to put the equipment in the Life Skills unit of the elementary school.  The request by Mrs. Jones would not trigger a duty to provide cameras in other units.

The letter to Commissioner Williams also indicates that “a staff member” should be read only to mean the teacher of that particular unit.

We shall see what Commissioner Williams does about this. For sure, some clarification is desperately needed, and needed soon.

One other interesting wrinkle to this bill: it’s pretty clear that the term “a trustee” means just what it says. Thus it may turn out that not every parent, and not every staff member can require the installation of security cameras in the special education classrooms. But any school board member can.  Regardless of how Commissioner Williams interprets the terms “a parent” and “a staff member” it seems there can be little debate about “a trustee.”

This is the only instance I know of in which a law empowers a single school board member to exercise power as an individual.

DAWG BONE: WATCH FOR COMMISSIONER’S RULES TO CLARIFY THE “CAMERAS IN THE CLASSROOM” BILL

WHEN DOES THE “STAY PUT” RULE COME INTO EFFECT?

Dear Dawg: We had an ARD meeting three weeks ago at which the parties disagreed.  The school proposed some changes to the IEP and placement.  The parent disagreed.  He checked the “disagree” box on the form, and we advised him of how to request a due process hearing.  Now three weeks later, no request for hearing has been made.  Is the “stay put” rule in effect?  Or can we put the changes we proposed into effect?  STAYING PUT UNTIL WE HEAR FROM YOU.

DEAR STAYING PUT:  This came up in a case recently decided by the 2nd Circuit Court of Appeals.  In the case before it, the parties had a non-consensus IEP Team meeting in June, 2009.  The parent requested a due process hearing, but waited until April, 2010 to do so.  That’s a ten month gap.  When did “stay put” go into effect?

The court held that “the statute is clear that the Board’s obligation to provide stay-put services was not triggered until the Parent’s administrative complaint was filed.”  In other words, disagreeing at the meeting is not sufficient.  The parent has to file for a hearing in order to invoke “stay put.”

This is why districts are required to provide Prior Written Notice.  The PWN document gives the parent fair warning of a change that is going to go into effect, unless the parent requests a hearing.  If you had a non-consensus ARDC meeting, you should have provided PWN.  You say it is now three weeks later.  If you have provided PWN properly, and the parent has not requested a due process hearing, the changes proposed at the meeting should go into effect.  Stay put has not been invoked.

So sayeth the 2nd Circuit in Doe v. East Lyme Board of Education.  It was decided on June 26, 2015, and is cited at 790 F.3d 440 (2nd Cir. 2015).

DAWG BONE: STAY PUT GOES INTO EFFECT WHEN A HEARING IS REQUESTED.

DEAR DAWG: I’M CONFUSED ABOUT WHAT WE ARE SUPPOSED TO TRANSLATE AT AN ARD MEETING. WHAT ARE THE RULES?

You are confused because it is confusing. We’ve had a lot of wrangling about this of late, including a new rule that went into effect at the start of 2015. Now we have a proposed addition to that rule that may make it more clear.

Here’s where we are right now.  The current rule says:

If the student's parent is unable to speak English and the parent's native language is Spanish, the school district must provide a written copy or audio recording of the student's IEP translated into Spanish. If the student's parent is unable to speak English and the parent's native language is a language other than Spanish, the school district must make a good faith effort to provide a written copy or audio recording of the student's IEP translated into the parent's native language.

This is pretty much the same language we have in the Education Code at 29.005(d).  Notice that both the statute and the rule call on districts to translate the IEP—not the ARD meeting. This has caused much confusion, as some folks fail to distinguish between the two. But they are different. The proposed rule clarifies this. It reads as follows:

(1) For purposes of this subsection, a written copy of the student's IEP translated into Spanish or the parent's native language means that all of the text in the student's IEP in English is accurately translated into the target language in written form. The IEP translated into the target language must be a comparable rendition of the IEP in English and not a partial translation or summary of the IEP in English.

(2) For purposes of this subsection, an audio recording of the student's IEP translated into Spanish or the parent's native language means that all of the content in the student's IEP in English is orally translated into the target language and recorded with an audio device. A school district is not prohibited from providing the parent with an audio recording of an ARD committee meeting at which the parent was assisted by an interpreter as long as the audio recording provided to the parent contains an oral translation into the target language of all of the content in the student's IEP in English.

(3) If a parent's native language is not a written language, the school district must take steps to ensure that the student's IEP is translated orally or by other means to the parent in his or her native language or other mode of communication.

We added emphasis to that with the bold font to make sure the message gets across.  It’s not the back-and-forth at the ARD meeting that must be translated.  It’s the IEP. All of it.

DAWG BONE: TRANSLATING THE IEP IS A MUY BUENO IDEA.

WE JUST GOT A BILL FOR TUITION FROM A RITZY PRIVATE SCHOOL IN NEW ENGLAND WHERE ONE OF OUR FORMER STUDENTS IS NOW ATTENDING. WHAT’S THIS ABOUT?

Parents of students with disabilities can place their children in private schools and seek reimbursement from the public school. But it is not easy for them to prevail in litigation.  They have to prove that the public school failed to provide a free appropriate public education, and that the private school will do the job properly.  But they also have to give the public school fair warning of their intent to pursue this course of action.

That notice requirement was the reason that a parent in New Jersey lost his bid for tuition reimbursement.  The court held that he failed to give timely notice.  The sequence of events was critical:

July 10: parent filed application for son to attend The Forman School, a private college prep boarding school;

August 7: child is accepted;

August 13: parent signs enrollment agreement;

August 16: parent pays full first year tuition ($61,700);  (Yowza!!)

August 24: parent sends letter to district, stating his intent to place child in private school, and to seek reimbursement;

September 6: student begins attending orientation at Forman;

September 7: IEP Team meets, develops revisions to the proposed IEP the school would offer.

During the September 7th meeting, the parent revealed that the student was attending Forman’s orientation program.  Upon learning this, the school terminated the meeting.

The parent is required to give written notice of the intent to remove a student and seek removal at least 10 business days before the removal.  The court held here that the student’s removal was a “fait accompli” as of August 13th.  Thus the notice that the parent sent on August 24th was late.  The case is W.D. v. Watchung Hills Regional High School Board of Education, 65 IDELR 63; 602 F.App’x 564 (3rd Cir. 2015).

DAWG BONE: I.D.E.A. SPELLS OUT A LOT OF PARENT RIGHTS, BUT ALSO A FEW RESPONSIBILITIES.