Tag Archives: Special Education

Dawg Bones

COST CONTROLS FOR INDEPENDENT EDUCATIONAL EVALUATIONS

The parent wants us to pay for an IEE that we think is too expensive. What do we do?

A Texas hearing officer recently ruled in favor of a school district that put a cap on how much it would pay for an IEE—an Independent Educational Evaluation.  Districts are allowed to have criteria pertaining to IEEs, including cost controls. This case involved a parent’s request for an independent evaluation for autism that would run $7,200, and that would not include the cost of a Functional Behavioral Assessment. The FBA would be done at $125/hour and could add up to an additional $9,700.  This exceeded the district’s cap.  The parent also requested a speech evaluation that was going to cost $1,500—four times the district’s cap.

The law is clear that districts can have “caps” on what it will pay, but there are two important caveats to add. First, “unique circumstances” must always be recognized and accommodated.  Second, the district has to base its cap on realistic and accurate information. You can’t just pick a number out of the air. Here, the hearing officer concluded that the “district’s evidence on appropriate costs of IEEs was based on substantial objective data relevant to the issues presented by the parties.”  The paragraph citing how the district did this is worth quoting in full:

The district has adopted operating guidelines for independent educational evaluations and their costs.  The guidelines are based upon research in typical costs for evaluations within the geographic area, consideration of the evaluator’s credentials and the unique needs of the student, and approximations of costs up to 35% higher than Medicaid rates for the service. Data to establish the guidelines is gathered from two regional education service center regions and includes objective data from school districts, various professionals and private providers.

The case is Student v. Lewisville ISD, decided by hearing officer Lucius Bunton on June 5, 2015.  The docket number of the case is 107-SE-1214, and you can find it on the T.E.A. website:  http://tea.texas.gov/About_TEA/Legal_Services/Special_Education/Due_Process_Hearings/Special_Education_Due_Process_Hearings_2015/.

DAWG BONE: COST CRITERIA REGARDING IEEs REQUIRES RESEARCH, DATA. 

 

 

Dawg Bones

LEGISLATIVE ALERT! ARDC MEETINGS!!

 S.B. 1259 goes into effect with the start of the 2015-16 school year.  It does three specific things.

First, it specifies that the “regular education teacher” member of the ARDC must “to the extent practicable, be a teacher who is responsible for implementing a portion of the child’s” IEP.  In other words, don’t just pull a random P.E. teacher out of the hall. Get someone there who will be working with the student in the classroom.

Second, it specifies that the written documentation of the ARDC meeting must include the date of the meeting, the name position and signature of each member participating in the meeting, and “an indication of whether the child’s parents, the adult student if applicable, and the administrator agreed or disagreed with the decisions of the committee.”  More on this in a moment.

Third, each member of the committee who disagrees with the IEP developed by the ARDC is entitled to include a statement of disagreement.

We have had a lot of wrangling of late about this “agree or disagree” business.  For many years our rules required “each member’s agreement or disagreement with the committee’s decisions.”  Federal law has no such requirement, but Texas imposed it via 19 T.A.C. 89.1050(e).

This rule was dropped as of January 1, 2015. Thus current rules have no requirement that each member of the group indicate agreement or disagreement.

But now we have a statute that requires a statement of whether or not the parent (or adult student) and the administrator are in agreement with the decisions made.

This makes sense.  The ARD Committee needs to know, at the conclusion of business, whether or not there is an agreement between the school and the parent/adult student.  If there is a disagreement, the parent/adult student has the right to seek legal recourse.  So it is important for the record to reflect clearly whether or not the parent (or adult student) agrees with decisions regarding identification, evaluation, placement and the provision of a FAPE.  The administrator plays a critical role in this because he/she is identified in the regulations as the “representative of the school district.”

DAWG BONE: GET READY TO CHANGE THOSE IEP FORMS AGAIN!

 

 

Dawg Bones

LEGISLATIVE ALERT! CAMERAS IN THE CLASSROOM!!

 SB 507 will require school districts and charter schools to video record what is going on in certain classrooms.  The bill is about student safety for our most vulnerable kids—those who are in self-contained special education classrooms.  Students who are non-verbal, non-ambulatory and of low cognitive ability are usually served in those classrooms. But there are other kids in a self-contained classroom as well.

This bill is very important, but it does not go into effect until the start of the 2016-17 school year. Thus, school administrators have some time to learn about this one and come up with a plan.  And to hold multiple bake sales and car washes.  SB 507 is an unfunded mandate—exactly the type of thing most of the politicians promised they would not do.

The Commissioner will be adopting rules to clarify how this bill will be implemented, including a more precise definition of the type of classroom which must be recorded. Look for those rules to be proposed sometime this next school year.

The bill specifies that it’s about safety—not teacher evaluation or any other purpose. In fact, you may not allow anyone to regularly or continually monitor the video recording of the self-contained classroom. However, you must permit a person to view the video if they ask to see it in response to a complaint that has been made, and they are “involved in the incident” documented on the video. Expect considerable discussion of what “involved in the incident” means.  This would include the teacher or aide who is “involved” as well as the parent of the student who is “involved.”  On top of that, certain identified district personnel must be given access if they are investigating a complaint about a staff person, or a student.

We will be reviewing this one, and all of the other new legislation, at my annual Back to School Tour this fall. Check out the details of that at: https://legaldigestevents.com/legal-digest-events/back-to-school-workshops-with-jim-walsh/.

DAWG BONE: CAMERAS IN THE SPECIAL ED CLASSROOM—IN 2016. 

 

 

Dawg Bones

REVOCATION OF CONSENT FOR SPECIDAL EDUCATION SERVICES

The parents revoked consent for us to provide special education services, but this kid is a real behavior problem.  If he commits a serious offense, do we have to do a manifestation determination?

Houston ISD faced that dilemma during the 2013-14 school year. According to the report of a subsequent OCR investigation, the parents revoked consent for special education services on November 7, 2013.  From then until the following March the school suspended the student out of school 16 times.  The district did not consider whether or not this series of removals amounted to a “change of placement.” Nor did the district conduct a manifestation determination.  After all, the student was no longer in the special education program, no longer protected by IDEA.

OCR was brought in to investigate a parent complaint of discrimination over this issue and two others.  OCR did not find the district at fault with regard to any of the three issues presented.  One was dismissed because it was already the subject of another proceeding. A second issue was dismissed for lack of evidence to support it. But on the discipline issue, the district agreed to a voluntary resolution.

That resolution agreement required the district to 1) re-evaluate the student as per Section 504;  2) belatedly conduct a manifestation determination regarding those 16 suspensions; and 3) if the behavior is deemed to be a manifestation of the student’s disabilities, provide compensatory services.

Note that OCR did not order the district to do this and did not express the opinion that the district was required to do this.  The law on this subject is murky.  Parents who revoke consent for services under IDEA should be told very clearly that the protections of IDEA regarding discipline will no longer be provided.  But as to Section 504, we have no clear guidance.  Courts have come to different conclusions about the availability of Section 504 after IDEA services cease.  None of the cases, to date, has directly addressed the issue of student discipline, the notion of “change of placement” and the requirement of a manifestation determination.

The best practice is to consult with your school district attorney on this issue, as it calls for a careful case-by-case analysis.  We found the Houston ISD matter at 65 IDELR 52.   The OCR report is dated November 26, 2014.

DAWG BONE: ON REVOCATION OF CONSENT, GET YOUR LAWYER INVOLVED!

 

 

Dawg Bones

Does every member of the ARD Committee have to agree or disagree with the decisions made at the meeting?

For as long as I can remember, Texas has required each member of the ARD Committee to indicate whether he or she agrees or disagrees with the decisions made at the meeting.  IEP forms used by school districts accommodated this requirement by including an “agree/disagree” check box next to the name of each of the required members of the Committee.

As of January of this year, this changed.  The Commissioner adopted new rules that dropped the “agree/disagree” requirement.  ARD procedures are spelled out at 19 T.A.C. 89.1050, and they no longer require the “agree/disagree” from each member.

But hold on.  Now there is a bill pending in the legislature (HB 3991) that would go back to the old way of doing business.

Out of curiosity I put out a question on the Council of School Attorneys’ website asking how other states handle this issue. I was informed that Oklahoma and Nebraska require each member of the IEP Team to agree or disagree. But there is no such requirement in Alabama, Connecticut, Georgia, Illinois, Louisiana, New York, Oregon or Utah.

What difference does it make?  Not a lot.  But if Texas wants to keep its procedures pared down to only what the feds require, it should not re-impose this requirement.  Federal law spells out who is supposed to be at the ARDC meeting, but does not require each individual to signify an agreement or disagreement with each decision.  The only time the IDEA speaks of each member “agreeing or disagreeing” is in connection with the report of the “group of qualified professionals” considering whether or not a child has a learning disability.  34 CFR 300.311(b).

It’s an obscure issue, but our special education laws specialize in micro-management. Thus the beat goes on. Keep an eye on HB 3991.

DAWG BONE: DON’T ORDER THOSE NEW IEP FORMS JUST YET.        

 

 

Dawg Bones

PUTTING THE D IN ARD

It’s an Admission, Review and Dismissal Committee.  The title tells you three of the primary functions of the ARDC.  It ADMITS students to the special education program by determining that they are eligible.  It REVIEWS the student’s progress at least once a year.  And it DISMISSES students from special education.

A recent court case from Maine focuses on the dismissal of a student.  The court’s opinion never uses the term “educational need” but that was the main reason that Jane Doe was dismissed from the special education program after seven years of service for her learning disability.  At age 15, Jane was receiving A’s in all of her classes.  Her strong performance in school was corroborated by state-mandated standardized tests. Jane met or exceeded grade-level expectations in both math and reading.

In December, 2012, the district completed Jane’s three-year reevaluation, which showed that she achieved average or higher scores on a battery of tests with only one exception. She scored “low average” on the Rapid Naming Composite portion of the Comprehensive Test of Phonological Processing.

Based on that comprehensive evaluation, along with the classroom grades and standardized test scores, the IEP Team determined that Jane was no longer eligible.  The parents objected, hired two educational experts to test Jane, and took the matter to a due process hearing.

The hearing officer ruled for the school district, and the federal district court affirmed.  The lawyers tried to drag the court into the murky waters of “severe discrepancy” and “standard deviation” and other such arcana. The court dodged it:

As measured by the requirements of the federal regulations, the IEP Team reached this conclusion [that Jane no longer qualified] based on indicia showing that Jane was achieving adequately for her age and meeting State-approved guidelines—Jane’s grades, standardized test scores, and teacher feedback.

Jane’s lawyers tried to focus the court on Jane’s reading fluency scores, and argued that the hearing officer had “veered off course into a consideration of Jane’s academic grades…and scores on Maine’s standardized tests that do not measure reading fluency at all.”

Looking at grades and test scores is hardly “veering off course.” Special education services are designed to assist students with disabilities to achieve at grade level, or as close to it as possible.  Grades and test scores tell us whether the student has achieved that or not.   The evaluation of a student with a learning disability, under both state and federal law, requires a finding that “the child does not achieve adequately for the child’s age or to meet State-approved grade-level standards.”  That makes it pretty clear that achieving at grade level is an important goal.

If the child achieves at grade level, without the provision of special education services, the child does not qualify as a student with a specific learning disability.  It’s really that simple.

The case is Doe. v. Cape Elizabeth School Department, decided by the federal district court in Maine on December 29, 2014. The case is at 64 IDELR 272.

DAWG BONE: YOU ARE NOT A STUDENT WITH A LEARNING DISABILITY UNLESS YOU ARE UNDERACHIEVING. 

 

 

Dawg Bones

WHAT IS THE DEADLINE FOR THE THREE-YEAR RE-EVALUATION?

R.C. is a student in the District of Columbia.  In April, 2010, the school district completed an evaluation of R.C. to consider his eligibility for special education services.  Ten months later, on February 8, 2011, his IEP Team met and determined that he was eligible for services.  The court case does not tell us why there was such a long delay, but the dates are relevant because the parent later complained that the student’s three-year reevaluation was not completed on time.

We all know that it is a “three-year” reevaluation, but when does the three year clock start to tick? Is it from the date of the prior evaluation (April, 2010) or the date of eligibility (February, 2011)?

The court concluded that the timeline runs from the date of the previous evaluation.  Thus, if a student’s FIE (Full Individual Evaluation) is completed today, the three-year re-eval would need to be completed by April 20, 2018.

In R.C.’s case, the district missed the deadline.  The court held that this was a procedural error, but found no evidence that the error caused any harm to the parent or the student.   In fact, the court pointed out that “plaintiff has not alleged, much less proven, that R.C. suffered any educational harm from this violation.”

No harm, no foul. The case is Cooper v. District of Columbia, decided by the federal district court for the District of Columbia on December 30, 2014.  We found it at 64 IDELR 271.

DAWG BONE: THREE-YEAR RE-EVAL RUNS FROM DATE OF PREVIOUS EVALUATION. 

 

 

Dawg Bones

DOES THE SCHOOL HAVE TO TRANSPORT A CHILD HOME FROM A PRIVATE, AFTER SCHOOL DAY CARE PROGRAM?

It would have been helpful if the court in New York had ruled on the substantive question presented. The issue comes up fairly often.  The case involved a student with autism and an intellectual disability who attended public school in Bay Shore, New York.  At the end of the school day, on two days of the week, the school district provided special transportation to deliver the boy to an after school program he attended.  The boy’s grandmother usually picked him up from the after school program. But she died.  So the dad asked the school to provide the transportation and the school said no.  The dad sued.

The district court in New York tossed the case out. The parent should have requested a special education due process hearing.  He did not do that. He filed suit in court and the court held that this was premature.  In legal parlance, the father “failed to exhaust his administrative remedies.”  Thus the court had no jurisdiction—end of story.

If the court had ruled on the legal issue, I’m guessing that it would have ruled for the school district.  The district was not paying for the after school program, and had not identified it as something that the student needed in order to receive FAPE (Free Appropriate Public Education). The school district provided bus service to the after school program because it would otherwise be transporting the student home.  In that sense, it owed the student transportation at the end of the school day.  But this after school program was chosen by the father, not recommended or paid for by the school.  Thus I would guess that the court would have said that the school had fulfilled its transportation duty by delivering the boy to the after school program.

Cases like this produce sympathy.  No doubt this after school program is beneficial to the student, and I suspect that the father would not go to the trouble of filing a federal lawsuit over the matter if a simpler solution were readily available.  Perhaps he is a single dad, and thus the death of the grandmother puts him in a bind.  But when we apply our cold blooded legal analysis here, we see that this is the type of dilemma that millions of families face, whether there is a disability involved or not.   There is no disability-related need for this transportation service.  The student is not being treated less favorably than other kids.  So I’m guessing the school would have prevailed in this one “on the merits” as the lawyers say.

The case is Licata v. Salmon, decided by the Eastern District of New York on January 12, 2015. We found it on SpecialEdConnection at 64 IDELR 263.

DAWG BONE: “SPECIAL TRANSPORTATION” HAS TO HAVE SOMETHING TO DO WITH THE STUDENT’S DISABILITY.

 

 

Dawg Bones

T.E.A.’s GENE LENZ CORRESPONDS WITH OSEP ABOUT PROGRESS REPORTS

OSEP wrote to T.E.A.’s Gene Lenz on February 7, 2014 about the duty of school districts to report on the progress of students with regard to their “benchmarks or short-term objectives.”  Most student’s IEPs do not have to include “benchmarks or short-term objectives"—they only need a measurable annual goal.  An IEP must include “benchmarks or short-term objectives” only if the student is scheduled to take an “alternate assessment aligned to alternate achievement standards.”  Our special education law (IDEA) requires schools to keep parents informed of student progress. So Mr. Lenz asked if it was necessary to report on the progress on the short-term objectives, or if reports tied to the annual goal were sufficient.

OSEP responded by quoting the statute, which makes it clear that the duty to report progress is tied into the annual goal, not any shorter term benchmark or objective.  The letter notes that “there is no specific IDEA requirement for reporting to parents on every child’s progress in meeting these benchmarks or short-term objectives.”

This is the kind of tiny detail that may cause many an eye to glaze over, but it does come up in parent complaints.   So Mr. Lenz has done Texas educators a service by seeking clarification of this fine point.  The OSEP letter can be found at SpecialEdConnection, 64 IDELR 283.

DAWG BONE: YOU CAN REPORT ON PROGRESS AS OFTEN AS YOU WANT, BUT THE LAW TIES PROGRESS REPORTS TO THE ANNUAL GOAL.

 

 

Dawg Bones

DR. BIGBRAIN WANTS TO DO A CLASSROOM OBSERVATION. WHAT DO WE DO?

Mr. Jones has exercised his rights under IDEA and is in the process of obtaining an IEE (Independent Educational Evaluation).  The IEE is to be done by eminent and esteemed psychologist, Dr. Bigbrain.  How eminent and esteemed is this guy? Well….he has many letters after his name.  His glasses frequently slip down on his nose so that he can look over them in a very scholarly manner.  He has a neatly trimmed Van Dyke.  There are elbow patches on his tweed jacket. Rumor has it that he smokes a pipe.  He uses big words.  The man is uber-qualified.

And Bigbrain says that his evaluation must include a classroom observation of the child.  Can the school refuse this request?

Yesterday we talked about a federal court case and an OSEP letter about classroom observations by parents and their attorneys.  Both the case and the OSEP letter tell us that IDEA does not give parents the right to demand that they or their attorneys observe in the classroom.

However, observation by a qualified evaluator conducting an IEE should be looked at differently.  Both the court case and the OSEP letter addressed this.  In fact, in the court case, the original hearing officer ordered the district to allow the parents’ independent evaluator to conduct an observation in the classroom. The hearing officer concluded that barring a qualified evaluator from the classroom would interfere with the parents’ right to obtain an IEE.  The school did not challenge that ruling on appeal.  The case is T.M. v. District of Columbia, decided by the federal district court in Washington, D.C., on December 3, 2014.

OSEP sees it the same way.  The OSEP Letter to Savit (February 10, 2014) notes that an observation by a qualified evaluator pursuant to an IEE is not the same as an observation by a parent or attorney: “Therefore, it would be inconsistent with the IDEA for a public agency to have a policy giving third party evaluators only a two hour observation window, because such a limitation may restrict the scope of the IEE and prevent an independent evaluator from fulfilling his or her purpose, unless the LEA also limits its evaluators to a two hour observation period.”

Why the difference? Because IEEs done at public expense are supposed to be conducted under the “same criteria” that the school uses in its own evaluations of students. If the school would include a classroom observation in its evaluation, it must permit the parents to do the same in an IEE.  Likewise, OSEP says the school can limit the IEE observation to two hours only if it also limits itself to that timeframe.

DAWG BONE: REQUESTS FOR CLASSROOM OBSERVATION PRESENT LEGAL ISSUES—RESPOND THOUGHTFULLY.