Tag Archives: Special Education

Dawg Bones

CAN THE SCHOOL BAR THE PARENTS FROM CLASSROOM OBSERVATION?

According to a federal court in the District of Columbia, IDEA does not guarantee parents a right of observation of their child in the classroom. Nor does it guarantee that attorneys representing the parent can observe.  This arose in T.M. v. District of Columbia, a case decided on December 3, 2014, and reported by SpecialEdConnection at 64 IDELR 197.

The parents’ argument in this case was based on the notion that IDEA guarantees parents the right to participate in the IEP process in a meaningful way. It also gives parents the right to an IEE (Independent Education Evaluation) if they disagree with an evaluation done by the school.  But the court noted that “the statute is silent on the issue of parental observations.”  The opinion goes on to say that “In the absence of any authority to the contrary, IDEA does not guarantee parents the right to observe on request.  Thus, [the school district’s] decision not to allow T.M.’s parents and attorney to observe when requested was not a denial of FAPE.”

This court decision is consistent with OSEP’s view on the matter.  In Letter to Savit, (February 10, 2014) OSEP says “the IDEA and its implementing regulations do not provide a general entitlement for third parties, including attorneys and educational advocates, to observe children in their current classrooms or proposed educational placements.”

Keep in mind that just because parents do not have the legal right under IDEA to observe in the classroom does not mean that schools must prohibit them from doing so. Most schools permit classroom observation, subject to reasonable rules about frequency, duration and confidentiality. The key is to be consistent and fair about this, with a set of rules that apply to all parents.

What if the parent is obtaining an IEE, and the evaluator wants to do a classroom observation? We will address that issue tomorrow, so check in with the Dawg again then!

DAWG BONE:  IDEA DOES NOT GUARANTEE PARENTS OR LAWYERS THE RIGHT TO OBSERVE IN THE CLASSROOM.

 

 

Dawg Bones

5th Circuit rules for Fort Bend in special education case—reversing lower court.

The 5th Circuit Court of Appeals has ruled that Fort Bend ISD is not legally responsible for the costs of a residential placement for a student with a disability.  There was a lot at stake in the case, as the lower court had ordered reimbursement of tuition at the rate of $7,000 per month, along with over $600 in transportation costs and $90,000 in attorneys’ fees. The appellate court reversed, and rendered judgment in favor of the FBISD.

The basis for the ruling was the court’s conclusion that the private, residential placement chosen by the parents was not “appropriate.” The parents had placed their son at CALO—Change Academy Lake of the Ozarks. The court described CALO as a mental-health facility in Missouri. The high school student had previously attempted suicide, and was regularly using marijuana. Pulling him out of the public school, the parents first put the student at a wilderness camp in Utah, and then at CALO.

The court cited two crucial factors in its analysis. Was the child placed at the facility “for educational reasons”?   And would progress at the facility be judged primarily by educational achievement? The parents failed to satisfy either of those tests.

The first factor concerns the “motivation of the person making the placement.” This placement was motivated by fear of another suicide attempt, and concern over substance abuse. The court said that “there is no evidence showing that [the parents] then enrolled Z.A. at CALO for educational reasons.”

As to the second factor: “The evidence, however, plainly supports finding that Z.A.’s progress was not judged primarily by educational achievement.” Instead, the effort was to treat the student’s underlying disability. Educational achievement may have been an outcome, but it was not the primary indicator of success.

The court ordered that its opinion not be “published” in the official legal reports that create precedent to be followed in future cases. Nevertheless, the opinion is published on the 5th Circuit’s website, and provides a good illustration of the analysis courts will use in dealing with residential placements.

The case is Fort Bend ISD v. Douglas A., decided by the 5th Circuit on February 5, 2015. Here’s the link to the opinion: http://www.ca5.uscourts.gov/opinions/unpub/14/14-20101.0.pdf

DAWG BONE: TO GET REIMBURSED FOR A RESIDENTIAL PLACEMENT, PARENTS BEAR A HEAVY BURDEN OF PROOF.

 

 

Dawg Bones

IS “ZERO TOLERANCE” CONSISTENT WITH FEDERAL LAW?

People use the term “zero tolerance” to mean a lot of different things. In essence, it signals a tough, no excuses, discipline system. It curtails educator’s discretion in favor of simple black and white rules applied across the board.

But that approach is problematic under federal law. Our basic special education law, IDEA, says that students with disabilities may not be removed from their classroom placement as a disciplinary consequence unless the student’s ARD Committee concludes that the behavior was not a manifestation of the student’s disability. You can’t just slap a special ed kid into the DAEP due to a disciplinary infraction. You have to go through the ARD process first. Thus it’s hard to square that legal requirement with a strict “zero tolerance” approach.

Our federal special education law does include three “semi-zero tolerance” provisions. These are known as the “special circumstances” offenses—drugs, weapons and the infliction of serious bodily injury. If a student commits one of those offenses, the school is authorized to order an immediate removal of up to 45 school days. This can be done whether the behavior was caused by the disability or not.   But that’s still not exactly what most people mean by “zero tolerance.”

So be careful in tossing this term around.

DAWG BONE: IT’S HARD TO APPLY “ZERO TOLERANCE” AND COMPLY WITH FEDERAL LAW AT THE SAME TIME.

 

Dawg Bones

FOLLOW THE AGENDA AT AN ARD MEETING

Dear Dawg: At an ARD meeting can we just jump right into talking about the student’s placement?  That’s what the parent wants to do, so why not?

Jumping right into placement at the ARD meeting can be dangerous, even if the parent is impatient and wants the meeting to move along.  That’s the lesson of P.C. v. Milford Exempted Village Schools, 60 IDELR 129 (S.D. Ohio 2013).  This is one of the many cases in which parents allege that the school improperly “predetermined” the placement by entering into the IEP Team meeting with a closed mind. The hearing officer did not see if that way. Nor did the state review officer. The school district prevailed in the litigation until the case went to federal court. There, however, the parent won.

The court held that the district denied FAPE by engaging in predetermination, thus depriving the parents of meaningful participation in the process.  The court held that the district predetermined placement in its reading program and failed to involve the parents in the discussion of what reading methodology would be used.  The court acknowledged that methodology need not always be included in IEP Team discussions, but in this case, it should have been.  But the most interesting and illuminating part of the court’s decision involves the order in which things are to be decided.  The court held that the Team had decided placement “and then began to decide on what goals to pursue and which methodologies to try.”

The court noted that placement must be based on the IEP, and therefore, the content of the IEP should be decided before the placement discussion takes place.  This is an affirmation of the idea that IEP Team decisions should be made in the correct order: 1) evaluation review; 2) eligibility; 3) IEP; 4) placement.  This decision supports the notion that schools should have an agenda and follow the agenda so as to take things up in correct order. If you decide placement prior to deciding what the IEP will contain, how can you be sure that the placement is in the least restrictive environment?

So we think ARD Committees should come to closure on the content of the IEP—the present levels, the annual goals, and the specific services needed to achieve those goals, including related services. Then, the chair of the meeting can move the group on to the next issue: “Now that we have agreed on what the child needs, let’s talk about the least restrictive environment in which those services can be provided.”

DAWG BONE: ARD COMMITTEES SHOULD TAKE THINGS UP IN CORRECT ORDER.

Dawg Bones

ADMINISTRATIVE REPS AND THE ARD COMMITTEE

It has to be frustrating for the Miami-Dade County School District to be found guilty of “predetermination” after holding an IEP Team meeting that lasted three full days, with the parents in attendance the whole time.  The parties met from 9:00 a.m. to 3:30 p.m. on three separate occasions in an effort to develop an IEP and placement for a student moving from middle school to high school.  On top of that, the district sent the parents 59 (59!) “prior written notice” forms following the IEP Team meetings, but was then accused of  not providing “prior written notice” as required by law.  The parents were represented by a slew of lawyers, one of whom sought to recover for his time at the rate of $600/hour.

The 11th Circuit Court of Appeals held that the district “predetermined” the boy’s placement at Palmetto Senior High School. That school served 3600 students.  The parents wanted their son at MAST Academy, a much smaller charter school operated by the district. There was evaluation data to indicate that a large school would be difficult for the student to deal with, and might exacerbate his problems.  But the district insisted on Palmetto, and the court based its “predetermination” claim largely on a transcript of the IEP Team meetings in which the LEA representative was quoted as saying that MAST was “not an option that’s on the table as far as [the Board] is concerned. What our option is, is that he go to his home school.”

“This explicit statement,” said the Court, “that the Board was considering placement only at Palmetto Senior High School, and that bureaucratic policies precluded an alternative placement, weighs strongly in favor of finding predetermination.”

The Court’s opinion makes it clear that the voice of the “administrative representative” carries a lot of weight. The Court noted that “Other Board representatives [i.e., members of the IEP Team], to their credit, seemed ready to discuss whether the Board could accommodate [the student’s] needs by offering a smaller setting for [the student] within Palmetto Senior High School….But the Board representative running the meeting cut this conversation short, saying finally that the placement would be Palmetto Senior High School and that the parents would have to pursue mediation if they disagreed.”

It’s appropriate for the administrative representative to “speak for the school” after a full discussion of all options has been conducted.  It’s OK for the school to come to the conclusion that the meeting is going to end in non-consensus, and to explain that to the parents.  But the “not an option” remark in this case hurt the district’s case.

So be careful out there.  Even when you are tired and frustrated, be careful.

The case is R.L., S.L. v, Miami-Dade County School Board, (11th Cir. 2014) 2014 WL 3031231.

For today, chew on this Dawg Bone, special ed types:

DAWG BONE: WORDS SPOKEN BY THE “ADMINISTRATIVE REP” AT AN ARD MEETING CAN COME BACK TO HAUNT YOU

 

 

Dawg Bones

HOW THE TEACHERS’ LOUNGE CAN WORK FOR YOU

If you have some teachers who don’t seem to take IEPs seriously, you might want to make them aware of M.S. v. Utah School for the Deaf and Blind, 64 IDELR 11 (D. Utah 2014).

The court held that the district properly implemented the student’s IEP in one year, but not the second year.  Critical to this holding was the unilateral decision of the teacher to discontinue the use of an FM System.  Key Quote:

While some deference should be given to teachers, the IEP is created by a team of individuals with various areas of expertise and requires the classroom teacher to implement the components, even the ones that the teacher may not agree with or care to implement.

The word “unilateral” usually spells trouble for a school district in a special education case, where committee decision making is required. The ARD Committee is the architect; the teacher is the builder. The builder is not permitted to deviate from the architectural plans.

Teachers who disagree with IEP content should bring those concerns to the ARDC.  If a campus has a widespread problem along these lines, perhaps it is due to administrative neglect. Administrators who become aware of teachers who are not implementing IEPs faithfully should take corrective action.  Write up the teacher in a clear directive memo. It need not be harsh or threatening—just clear. Then you can let the teacher’s lounge do the rest of the work for you.

DAWG BONE: TEACHERS NEED TO IMPLEMENT IEPs FAITHFULLY, COMPLETELY

Dawg Bones

REMEMBER THE “I” IN IEP

How do you write an IEP for a student who is way behind in reading?  Age level? Grade level?  Reading level?

Consider Jefferson County Board of Education v. Lolita S., 64 IDELR 34 (11th Cir. 2014).  The court held that the IEP denied the student FAPE because it was not individualized.  The court pointed out that the student read at a 1st grade level, but his goal for reading was “derived from the state standard for ninth-grade students.”  And there was no explanation in the IEP as to how this would be accomplished.  It did not help the district’s case that the IEP had another student’s name on it, which was crossed out and replaced with this student’s name.  The transition section was also inappropriate, due to the use of “stock language.”  For example, the goal was “student will be prepared to participate in post-secondary education” but this did not match the student’s diploma track.  He was not on track for a regular diploma or post-secondary education.

We don’t know what happened in this case, but we suspect that the NCLB goal of all students being proficient at grade level, and being tested at grade level, may have played a part in this decision. But remember: IEPs must be individualized, tailored to the strengths and weaknesses of the particular student.  It sounds like this IEP started out with a good description of “present level.” The student was reading at a first grade level. But if that’s the case, how is the district going to get the student to the 9th grade level in one year?  Such an ambitious goal looks unrealistic and doomed to failure.  At a minimum, such an IEP should provide a clear road map for how such a goal would be accomplished.

So chew on this Dawg Bone for today:

DAWG BONE: EVEN IN THE NCLB ERA, IEPs MUST BE INDIVIDUALIZED

Dawg Bones

ARD COMMITTEES MUST RELY ON EVALUATION DATA

Pop Quiz!  Evidence is to the jury as ______________ is to the ARD Committee. What should go in the blank?

The correct answer to our analogy question is EVALUATION DATA.  Evidence is to the jury as EVALUATION DATA is to the ARD Committee.  All decisions by the ARDC should be based on the evaluation data. Such is the lesson of Blount County Board of Education v. Bowens, 60 IDELR 218 (N.D.Ala. 2013).

In this case, a parent took her child to a clinic sometime before the third birthday. The clinic  diagnosed the child as autistic and called for a structured, fulltime preschool for at least 25 hours per week.  The district “accepted” this evaluation and concluded that no further evaluation was needed.  The parent placed the student in a private program consistent with the private evaluation.  The district never put a specific IEP on the table and only offered a program for two to three days a week.  Later the parent asked for reimbursement for the private school tuition and she got it.  Key Quote:

As a threshold matter, the evidence is undisputed that Blount County accepted the Sparks Clinic’s evaluation.  Consequently, Blount County had an obligation to provide a FAPE consistent with the Sparks Clinic’s determination that J.B. required a minimum of twenty-five hours of intensive instruction per week and that J.B. “attend a structured preschool on a full-time basis.”  Therefore, Blount County’s offer for J.B. to attend the Multi-Needs Center for two to three days per week fell significantly short of satisfying J.B.’s “unique needs” as outlined by the Sparks Clinic. 

 This is a good illustration of how dangerous it is for the school not to conduct its own evaluation.  The court basically points out that the only evaluation data that existed called for a fulltime structured program. With no evaluation of its own, the district had no basis to provide anything less than that.  If the district “accepts” the private evaluation and chooses not to do its own, it should be prepared to provide the level of services recommended by the private evaluation.  This decision was affirmed by the 11th Circuit at 63 IDELR 243 (11th Cir. 2014).  The appellate court treated this not as a unilateral placement by the parent, but rather a placement that the school acquiesced to.  Still, the starting point for the school’s legal problems was the failure to conduct its own evaluation.

DAWG BONE: EVALUATION DATA IS THE RUDDER THAT STEERS THE SHIP.