Guy’s Log 2014

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DECEMBER *

dec 2014

December 12, 2014.  Steines et. al. v. Ohio State Athletic Assn.  11/2014
Key Words:  sports, Association rules, retention, accommodations
Published:  Yes
Decided for:  the parents
The Decision:  Steines et. al v. OSAAA  (24 pages)

Not a major case, but athletics have been at the root of a number of court spedlaw cases beginning (I think) with Doe v. Withers (1993), where a teacher failed to provide mandated accommodations, then failed the student, causing him his sports eligibility.  The parents sued.

In this case, the student had been in a private school out of state.   When he returned, he wanted to play soccer, but  the Ohio Athletic Assn. said it was against its residency rules before denying the parents’ request for a waiver, so the parents asked for and got a temporary stay and and then in November the court  issued a permanent stay prohibiting the Athletic Association from threatening or invoking its rules against this kid.   Despite the brevity of this summary, the Order itself runs 24 pages and can be accessed through Justia at:

Steines by Steines et. al v OSAAA 11/10/2014

The order read in part,

“The Court, finally, finds that the public interest is served by permitting a disabled child
who has attended school in Ohio since the first grade and who is not alleged to have been
unfairly recruited by his current school to participate in interscholastic sports.”

And while permitting the Defendant some leeway in determining how best to amend its rule, strictly prohibited them from excluding Charles, the student, from participating in any OHSAA regulated athletic program.      Federal laws not only prohibit schools from intentionally discriminating against a child with disabilities but also impose an affirmative obligation to make certain accommodations to that child.   The seemingly neutral application of a rule in such a circumstance can itself be discriminatory.

The link above also provides links providing examples of other accommodations children with disabilities have received.

December 5, 2014 E. L. v. CHAPEL HILL−CARRBORO BOARD OF EDUCATION, September 16, 2014.
Published:  Yes.
Key words:  Autism, Tuition reimbursement, Exhuastion of remedies
Decided for:  The school system.
The decision: E.L. v. Chapel Hill, 2014

Everyone knows, of course, that federal courts will not consider IDEA claims until or unless parents have exhausted the administrative remedies available to them.   What makes this case  unusual is that the parents lost due to a failure to exhaust administrative remedies . . . but had in fact gone through a due process hearing AND had appealed the decision to the State Review Officer (SRO) before going to the courts for relief.   What happened?  The parents had argued at the due process hearing that the school system had failed to provide a child with autism FAPE because they had failed to provide the child with ABA in her IEP and, additionally, had not provided the student with all the speech services that had been in their IEP.  The Administrative Law Judge decided in favor of the school system except for sixty hours of speech therapy, which the parents had provided, and ordered reimbursement.  The school board appealed and won at the SRO level.   Parents appealed, again challenging the IEP.   The district court ruled that the issues regarding the IEP could not be adjudicated by the court because the parents had failed to raise them at the SRO level.

Stewart Hardison and Katherine Hardison v. Board of Ed., Oneonta City School Dist., 2nd Circuit, 12/3/2014
Keywords:    Tuition reimbursement, Deference to the State Review Officer
Published:  Yes
Decided for: The parent
The Decision: Hardison v. Brd. of Ed. Oneonta Schl Dist, 2nd Cir. 2014

This case began in 2009, was heard by the Second Circuit in January, 2014, was decided in December, 2014.  The State Hearing Review Officer (SRO) had determined that the school had not provided FAPE but that the parents had not met their burden in proving their choice did provide FAPE (The school had conducted no evaluations, had no psychologist on staff, and provided no special education per se.)   The District Court judge reversed, finding that the parents had made a convincing case that their placement provided FAPE.   The Second Circuit reversed that judge’s decision, saying the judge had not given due deference to the SRO’s decision..

 

LRP and Justia (Click for Justia’s summary) both reported this case.

NOVEMBER *

november

November 12, 2014.  The Education Department issued a new Q and A regarding district responsibilities toward children with communication problems.

Subject: new guidance from ED and DOJ on effective communication with students with disabilities

Links

Frequently Asked Questions: FAQs

Fact Sheet  Fact Sheet in English

November 6, 2014  Caselaw Update

This week, there were two cases reported.

1.  Wayne-Westland Community Schools v. S et al, District Court of Michigan, October 16, 2014
Key Words:  restraining order, Honig injunction
Decided for:  The school system
Published:  Yes
The Decision:  Wayne-Westland Community Schls v .S., Dist Crt, 2014

When students with disabilities are found guilty of serious violations of the student code of conduct, most often schools utilize the unilateral right to place those children in alternative placement.  However, Honig v. Doe (See Landmark Cases on this website) is still alive and well.  In this instance, the school went to court claiming that the student in question should actually be suspended from school due to his posing an imminent risk to others in the school.   The court granted the request.

2.  Smith v. Cheyenne Mountain School District 12, Colorado District Court, 2014Key Words:  Stay put, Charter School, autism spectrum disorder
Decided for:  the parent
Published?  Yes
The Decision:  Smith v. Cheyenne Mountain Schl District, Colorado DC 2014

The school system wanted to change the child’s placement at a charter school. The “Stay put” provision of the IDEA says that during an appeal, the child’s current educational placement at the time of the appeal would continue to be his placement unless the parents agreed otherwise or until appeals were concluded (paraphrasing.)  In this instance, the child’s IEP was written for implementation in the charter school.  The school argued it could meet the child’s needs elsewhere but failed to show it could and, regardless, the court ruled that whether options existed was irrelevant with respect to the stay put provision.  It would seem if the school administrators or its attorney had just read the law for its plain English meaning, they could have saved themselves a whole lot of trouble.

 

November 3, 2014 Denis Sheils v. Pennsbury School,  3rd Circuit
Published or Non Published:  Non published
Key Words:  Stay Put, Child Custody Dispute, Functional Behavioral Analysis, Specific Learning Disabilities, least restrictive environment (LRE)
Decided for:   Neither Party.   Remanded for further ajudication by the district Court
Decision:  Sheils v. Pennsbury, 3rd Circuit 2014

This is a case about a sixth grader with SLD who had been mainstreamed 94 percent of the time but who, paraphrasing, was now sinking like a rock.  The mother, who had primary physical custody, approved the IEP, but the father objected, apparently with some vehemence, both to the mother’s custody and the proposed placement, invoking stay put.  The Circuit Court judges were so put off by the father’s diatribe against the mother that they directed to decease from further diatribes as they were irrelevant to the case and “highly distasteful.”  (Just as a general rule, it’s generally preferable to be liked by the judges than disliked.  The parent had lodged a Section 1983 complaint against the school system in district court, alleging that they had conspired with his wife to deprive him of his rights, but that claim was apparently dismissed.  The issue before the Circuit was whether or not either parent could unilaterally invoke stay put; or whether as the district alleged that if one parent provided consent, it was free to implement the IEP.

While the Circuit panel left it up to the district judge to decide who was right, the IDEA itself uses the plural (“parents” not “parent”) when talking about implementation, and the 2008 amendment giving either parent the unilateral right to demand cessation of all sped services is crystal clear.

https://www2.ed.gov/policy/speced/guid/idea/letters/2009-3/cox082109revocationofconsent3q2009.pdf

This seven page decision in and of itself doesn’t really add much to our understanding of sped law; but it’s all that was being reported this week.

OCTOBER *

october

October 23, 2014  D.A.B. et al v. New York City Department of Education, S.D.N.Y, 2014
Key Words:   Autism, Section 504, tuition reimbursement, vaccination requirement, student teacher ratio.
Decided for:  The school system
Published? Yes
The Decision:  D.A.B and M.B v. New York City Dept of Ed 2014

This was essentially a tuition reimbursement case, which requires that the parent demonstrate (1) that the school’s IEP would not provide the child with a free appropriate public education; and (2) that the parent’s choice would..  The school system proposed an IEP providing 6:1:1 instruction; the parents wanted 1:1 instruction from a teacher.

What is mildly interesting (to this reviewer) is that LRP framed this case as a disagreement over vaccinations, that is, that the parents alleged their child should not be vaccinated, the school system assigned the child to a school that enforced its vaccination policies, and that that was a denial of FAPE.   Except LRP was wrong.   It was not raised when the school system appealed to the state review officer, and it was not argued before the district court, either.   (In fact, there were several arguable issues that could have been raised at the district court level that were not; see below.)

The district court judge didn’t find any evidence in the record suggesting that the school’s proposal would have failed to provide the child with FAPE.

Despite the explosion of AU diagnoses over the past ten years, Autism continues to be a relatively low incidence disablity with a relatively high incidence of litigation.

The parents advanced a number of arguments, including a claim that the school had violated their child’s rights by requiring that he be vaccinated, and sending him to a different school when he wasn’t(an argument that failed because if they had provided a doctor’s note, the school would have provided the exemption.)

The parents did not advance the lack of ABA as a factor.   While doing so might not have been any more successful than their argument regarding vaccinations, it would have been a stronger argument (See the recent policy statement on ABA from Medicaid.  CMS Policy Clarification re ABA )

For a review of autism caselaw, the most accessible resource is Wrightslaw.com  Examples follow.

Anatomy of Zachary Deal v. Hamilton
Analysis of Henrico County
Analysis of Amanda J. v. Clark County

October 22, 2014  Bullying Memo from Washington

Yesterday, a new memo was issued from Washington that has already received wide distribution in the community of parents with disabled children.

Additionally, a Fact Sheet listing reasonable expectations for parents accompanied the memo.   Links to both the memo and the Fact Sheet follow:

Fact Sheet:  2014 OCR Fact Sheet on Bullying

Memo:  OCR Memo to Colleagues on Bullying

This is not of course the first time OCR has offer advice to school systems on what they should be doing in response to reoorts of bullying of children with disabilities.   Also see:

http://www.myschoolpsychology.com/federal-regulations/#ocr-on-bullying

The publication was widely distributed to parent and special education organizations which provided their own summaries:

Council for Exceptional children re Bullying

PLUK (Links Only)

DisabilityScoop.Com commentary

October 13, 2014 K. K., a minor by her parents;  L. K. and;  T. G., and on their own behalf v. Pittsburgh Public Schools  3rd Circuit (2014)
Keywords:  Deliberate indifference, Section 504, damages, FAPE, Gifted
Found for:  The school system
Published?   No
The Decision:  K.K. v. Pittsburg Public Schools, 3rd Circuit, 2014

Almost not worth mentioning, but unusual enough to merit some brief discussion.  Boiling it down to its basics, the gifted student involved suffered from both physical and emotional disabilities that required her to be on homebound services for a significant portion of her high school career.   She was assessed for and provided a Section 504 Plan, evaluated for IDEA services (found ineligible), and with a combination of in-school instruction, homebound instruction, and private tutoring, she graduated 21st out of a class of 336.  She went out on to college, experienced a reoccurrence of her emotional problems, was put on probation, and then withdrew during her second year on medical leave.   The parents attributed her poor performance to the inadequate education provided by the school system (homebound services were limited to a couple of hours per week) and sued  for damages  under 504 alleging deliberate indifference.   The district court, noting that there were no differences between the parties regarding the facts of the case, granted summary judgment to the school system; the decision was appealed and the Third Circuit affirmed in a 13 page decision.  While the homebound services obviously did not rise to the level of instruction provided by full time attendance, the circuit court’s finding was that homebound services were not intended to do so; that they were just intended to serve as a temporary stopgap measure allowing a student to keep up with his or her classmates  . . . and that in this case those services fulfilled their purpose.  By showing that they had met with the parents in response to changing circumstances and that they had taken action and made modifications to the child’s 504 Plan the school system as circumstances changedestablished a successful defense against “deliberate indifference” despite some failures noted by the court that were not fatal when viewed within the context of the evidence as a whole.

October 3, 2014  Jefferson Cty Board of Educ. v. Lolita, Eleventh Circuit, 2014
Key words:  SLD, boilerplate IEP, IEE reimbursement, tuition reimbursement, FAPE,  transition
Published?   No
Decided for:  The Parents
The Decision:  Jefferson County Brd. of Ed., 11th Cir., 2014

There has been continuing pressure from OSERS/OSEP to hold children with disabilities to high standards, that is, to the same academic goals as their peers at grade level.

Note;  See  Guy’s Log 2015: November for OSEP’s Letter on holding children to high expectations

Jefferson County, in accordance with its understanding that children with disabilities were to be held to the same standards as general education students, provided its students with boilerplate IEPs with goals at grade level.  This student was at the first grade in reading, but the school wrote ninth grade goals . . . with nothing in the IEP to suggest it had individualized the process to help M.S. reach those goals.   The lack of individualization was so egregiously obvious that in one instance, the teacher had taken an IEP written for another another child, crossed out his name, and written in this child’s name.

The district had argued that it “intended” to include the student in its STAR program . . . which the court noted was an assessment program, not a remedial program.  The lack of individualization was so blatant that the teacher had taken an IEP written for another student in her class. crossed out that student’s name, and written in M.S.’s name.  Additionally, the transition goals in the student’s IEP were created without any evidence that they were based on an individual assessment of that student’s individual needs.  So the court found that FAPE had been denied in transition planning as well as in reading instruction.  The parents had completed an IEE at their own expense but sued for reimbursement.  The school failed to prevail on that issue because the IDEA is quite specific in saying if a district doesn’t want to pay for an IEE, it has to convene a due process hearing to prove its evaluation was sufficiently comprehensive.   That the district did not do.   Automatically fatal to any case they might have otherwise presented at the district court level.

 

SEPTEMBER *

september


September 27, 2014.  T.K. and S.K. on behalf of L.K. v New York City Dept. of Ed., District Court, 7/24/201
4
Key Words:   Bullying, Tuition Reimbursement, FAPE, Deliberate Indifference, Tuition Reimbursement, BIPs
Decided for:  The parents
Published?  Yes
The Decision (31 Pages): T.K. an d S.K v. New York City Dept. of Ed., 2014

This decision, for the parents, was based on the district’s failure not only to address bullying complaints by the parents but also by its refusal to incorporate anti bullying strategies into the child’s IEP.   The school system’s behavior was judged based on the following standard:

“A disabled student is deprived of a FAPE when school personnel are deliberately
indifferent to or fail to take reasonable steps to prevent bullying that substantially restricts a child
with learning disabilities in her educational opportunities. T.K. v. New York City Dep’t of Educ.,
779 F.Supp. 2d 289 (E.D.N.Y. Apr. 28, 2011). The conduct does not need to be outrageous in
order to be considered a deprivation of rights of a disabled student. It must, however, be
sufficiently severe, persistent, or pervasive that it creates a hostile environment. “  p. 14

The decision went on to say that:

“When responding to bullying incidents, which may affect the opportunities of a
special education student to obtain an appropriate education, a school must take
prompt and appropriate action. It must investigate if the harassment is reported to
have occurred. If harassment is found to have occurred, the school must take
appropriate steps to prevent it in the future. These duties of a school exist even if
the misconduct is covered by its anti-bullying policy, and regardless of whether
the student has complained, asked the school to take action, or identified the
harassment as a form of discrimination.”

The judge went on to say that the bullying does not have to deprive a child of an opportunity to receive a free appropriate public education, only that it affect his ability to do so.

The judge also found that the record supported the hearing officer’s finding that the school system had been deliberately indifferent to the student’s plight, a finding that in general can have serious financial implications if a parent is seeking damages in addition to compensation.

The distressing part (for this reviewer) of this decision is that the litigation has been going on for six years.   Legal fees for both school and parent while not specifically addressed in this decision had to have been enormous.   And while the standards above and legalese regarding the responsibility of the IEP team to address, as a matter of law, bullying in an IEP or its Behavior Intervention Plan seem complex, the basic underlying principle is relatively simple:

If you know a child is hurting or being hurt, you’re supposed to do something.

September 24, 2014  Two cases;
Blount v. Merion Schls, Third Circuit 2014
Key words:  disproportionate representation; discrimination, damages
Published?  Yes
Decided for: The school system
The Decision (178 pages):  Blount v. Merion Schls, 3rd Circuit 2015

OCR has always said that disproportionate representation does not in and of itself constitute proof of discrimination.  The case of Blount v Merion Schools resulted in a finding for the school system supportive of that perspective . . . adding an additional legal test, e.g., proof of intentionality or deliberate indifference.  Which the plaintiffs failed to show.   Sometimes “I didn’t know” is a viable defense when defending against a plaintiff demanding damages.  However, as in the next case, ignorance is not a viable defense when parents are only seeking compensatory services (or reimbursement for compensatory services.)  A key paragraph from this 178 page decision (including dissents) was

Finally, plaintiffs did not establish a prima facie case of discrimination in violation of Title VI or § 1983; thus, the entry of summary judgment against them on their claims under those laws was appropriate. Evidence that the District Court found to be inadmissible need not have been considered in a light most favorable to the non-movant plaintiffs because the evidence could not have become admissible at trial.
M. M.:C.M v. Lafayette, Ninth Circuit 2014
Key words:  Parents right to see RTI data; IEP and FAPE; tuition reimbursement
Published?  Yes
Decided for:  The parent (Remanded for further consideration by the lower court)
The Decision: M.M. v. Lafayette, Ninth Circuit, 2015

The second case resulted in a partial finding for the parent.  Without going into too much detail,  what should be interesting about M. M.:C.M v. Lafayette to school psychologists was the reason that the Ninth Circuit found to remand for reconsideration of their tuition reimbursement claims.  While the district provided the student with a comprehensive evaluation, they failed to provide the parent with the RTI data, thereby depriving them of their right to full and meaningful participation in an IEP meeting.   In this case, “I didn’t know we were supposed to show them that,” was not a defense.   It’s odd that they did not, because since 2006 the federal regulations,  Section 300.309 has required teams considering a student for SLD classification (irrespective of methodology) to consider among other things:

Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formalassessment of student progress during instruction, which was provided to the child’s parents. http://www.myschoolpsychology.com/wp-content/uploads/2014/02/final-2006-regulations-for-the-IDEA-2004.pdf

In this instance, however, the school was using an RTI methodology so it is unclear why it was not shared from the start.  What was clear to the Ninth Circuit, however, was that  “absent a complete awareness of the data, the parents were unable to consider various instructional interventions.”    Hence the remand.

September 15, 2014  The US Attorney General sends a Statement of Interest to a district court in Springfield, Mass explaining how the ADA expands on the rights of children served under the IDEA: and a parent gets approval to sue a school system after a child with Aspergers commits suicide after being bullied and harassed.

Last week, LRP reported on two special education cases.   The first report was based on a “Statement of Interest” filed by the United States Attorney  General.   Although a lawyer writing for LRP thought that the statement was frightening, it did not as that attorney presupposed expand the rights of children identified as disabled but, instead, simply reiterated what we should have already known.  The basic facts of the case itself were not discussed in the statement, so its applicability is a question, and whether a judge or judges will agree with the Statement is also unknown.  Basically what the AG said was that the ADA affords additional rights to disabled persons including a private right of action, as long as the plaintiffs have exhausted administrative remedies for their IDEA or 504 claims.   What a private right of action means is that the litigants have a right to sue for damages (by definition.)  That’s also a right under 504.   Success on the plaintiff’s part requires a demonstration of intentional discrimination.   While the State of Interest goes on ad infinitem about the rights accorded to disabled children to be included in the general education program, that is also nothing new or specific to the ADA.   Except when talking about it under the IDEA or 504, we usually reference the child’s right to be placed in the least restrictive environment in which he or she can receive a free appropriate public education.    For this “frightening” statement, see:  AG Statement of Interest, SS v. Springfield, Dist. Court, 2014

The other case referenced a courts finding that a parent had the right to sue (not that her suit necessarily was meritorious) over the suicide of her child with Aspergers.   This case is also not without precedent.   It is not a Tarasof case where the school knew or should have known that a child was suicidal and failed to notify his parents; it is instead framed around the school’s obligation (and the plaintiff’s allegation that they failed in meeting that obligation) to protect its students from discrimination based on sex or disability.     In general,  damages are only made available when a school system has been deliberately indifferent to a child’s plight, and that is also the case under Title IX.   In this case, the child was harassed by peers who among other things repeatedly called him “a faggot.”   Chandler had written the counselor a letter saying he didn’t think he could stand another four years of school  given the daily bullying to which he was subjectedThe school counselor  suggested that he move to another school at the end of the semester or that he wait until the 11thgrade and “try to graduate early.”  At an IEP meeting shortly thereafter, although the problems were discussed,  school staff including the school psychologist allegedly offered no suggestions  to help ease the pain being inflicted on  this student.   Title IX is not a disability law, but it is enforced along with the ADA/504 in the Department of Education  by the Office for Civil Rights.    In simplest terms, this was a case of extreme bullying with disastrous consequences that the parents now allege rose to the level of a civil rights violation.   To read this Arkansas district court decision (which only allowed the case to proceed with no decisions regarding its merits) in its entirety,  click on:  Barnwell v. Watson, Eastern Dist Court, AK, 2014

For Office for Civil Rights guidance on Title IX, see
Office for Civil Rights re Title IX

Additionally, bullying in and of itself may provide grounds for a civil rights lawsuit.   Click onBullying.gov/  for additional information.

F.H. v Memphis City Schls (2014)
Key Words:  Section 1983, settlement agreements, exhaustion of administrative remedies, damages
Published?  Yes
Decided for:  The Parents (on their right to sue)
The Decision:  F.H. v. Memphis City 6th Circuit 2014 Decision  (10 pages)
The parents in this case were seeking damages resulting from the following alleged injuries under Section 1983 of the Civil Rights Act.

(1) Being frequently left unattended and unsupervised in the bathroom, distraught and crying, unable to clean himself; And in one case he suffered a seizure;
(2) Verbal and physical abuse, on multiple occasions from different aides and school personnel, allowing him to return from the bathroom, in one case, with bloody underwear;
(3) Being ridiculed about his disability (cerebral palsy) and told that he would, “never amount to anything;” until F.H. screamed and banged his head against the wall in frustration;
(4) Aides and school employees regularly failing to help F.H. clean himself, so that he returned to class with dirty underwear, and on at least one occasion an aide  announced to the class that F.H. smelled like “shit;”
(5) Being sexual abused by an aide on more than one occasion while in a private bathroom.

They had reached a settlement agreement under the IDEA on educational issues, which included an agreement not to litigate further under the IDEA.   The district court had ruled that this agreement barred them from litigating the case any further.  The circuit court overturned, saying that not all injuries are educational injuries.  The case was remanded back to the District Court for ajudication of the actual issues.

Putting it another way, not all injuries in schools are educational injuries.   This family found a little justice from the Circuit Court; but true justice was again delayed because in their decision they remanded back to the District Court to reconsider the matter based on their findings of law.

 

Also see:

Justia Summary of F.H v. Memphis City Schls

AUGUST *

August

August 29, 2014 D.E. v. Dauphin (3rd Circuit) 2014
Key Words:  compensatory education, deliberate indifference, responsibility for costs during an appeal
Decided for:  the plaintiff on the compensatory education claim; the school system on the deliberate indifference claim
Published?  Yes (“Precedential”)
The Decision:   Third Circuit: D.E. v. Central Dauphin School Disrict, 2014

This case  involved a 23 year old arguing that he was due compensatory education from a school system based on a due process hearing decision from more than five years previous.   D.E. also raised an ADA claim for monetary damages based on a claim of deliberate indifference by the school system,.  The plaintiff failed to convince the Third Circuit of the merits regarding the indifference claim because even though the school had obviously  had apologized for previous errors and tried to correct their mistakes.  D.E. won, however, on his IDEA claim.   The district was contending that the hearing officer had only determined that the parents should be reimbursed for services they obtained; the parents however were unable to front the cost of those services up front.   . Key to the decision in favor or D.E. on this issue, the court said in part, “Our Court, as well as several others, has recognized that the availability of IDEA remedies should not depend upon whether a student or his parents have the financial means to front the costs of those remedies.”  In over relying on the language used by the hearing officer, the school system (and the district court) missed the forest for the trees.   For the decision itself or Justia’s summary of the key points, see the links below.

August 21, 2014.  V.M. v. Sparta Township, July 3, 2014 (New Jersey District Court)
Key Words:  Dyslexia, discrepancy, sole criterion
Decided for:  The parents
Published?  Yes
The Decision (Link):  V.M. v Sparta, District Court, 2014

The district court judge found using a discrepancy formula as sole criterion for determining eligibility fatally flawed.

In this case, a student diagnosed with ADHD, dyslexia, and deficits in reading, writing, and arithmetic was found ineligible for services by his school system.   The school system appealed, and after eight days of hearings, the hearing officer upheld the decision of Sparta.   The parents appealed.   The problem here that the district court identified was not in the comprehensiveness of the evaluation process, but in the thoroughness of the decision making process in determining eligibility based on that information.

The school’s decision not to label the student appeared from the text of the eligibility report to have been solely based upon their finding that

“B.M.] does not meet criteria for specific learning disability because there is not a severe discrepancy between current achievement and intellectual abilities in one or more of the prescribed areas.”

The school psychologist was asked whether all of the other information she had collected was applied in determining eligibility.   She replied that it was helpful in understanding the student.   The questioning proceeded.

“Q. So do they — but do they help determine whether the student will be eligible for special education and related services?

  1. Not in terms of that discrepancy formula.
  2. I asked you — does this play into the determination in any way for determining whether a student would be eligible for special education and related services?
  3. It just gives us—
  4. Yes or no.
  5. — No.”

The district court judge only determined that the parents prevailed on the issue of identification; the parents were also seeking compensation for services they had provided and for their attorney.   Those issues were referred back to the Magistrate judge.   .

For our article on applying evaluation data in a defensible way to identify students when using a discrepancy metholology, see:  Yes, Virginia

While federal regulations now require LEAs to consider the state’s criteria for identifying children as SLD whether using the historical discrepancy or an RTI methodology, those same regulations ALSO say

Consistent with
§ 300.304(b) and section 614(b)(2) of the
Act, the evaluation of a child suspected
of having a disability, including an SLD,
must include a variety of assessment
tools and strategies and cannot rely on
any single procedure as the sole
criterion for determining eligibility for
special education and related services.
This requirement applies to all children
suspected of having a disability,
including those suspected of having an
SLD.   p. 46646

2006 IDEA Regulations

The judge’s summary of what is required by federal and (in this instance) New Jersey regulations is in this writer’s estimation worth boilerplating for every school psychological report (see page 5, link above.)

August 21, 2014   N.W. v. Boone County, United States 6th Circuit, August 6, 2014.
Key Words:  Autism, tuition reimbursement, stay put
Decided for:  the school system
Published? Yes
The Decision: N.W. v. Boone County, 6th Circuit, 2014

N.W. was a child with autism.   The parents claimed that Boone Cty had failed to offer FAPE and requested tuition reimbursement.   The District Court found that the private school placement was the stay put placement and, while finding for the district, still ordered the district to reimburse them for their costs.   On appeal, the circuit court found that the parental placement in a private school did not constitute the stay put placement and vacated the order for reimbursement because parents can only collect if the district has failed to offer a program providing FAPE.

For another summary, see:
Justia Summary of NW v. Boone Cty, 2014

August 7, 2014  Blount County Board of Education v. Bowens et. al., 11th Circuit, 8/5/2014
Key Words:  Private School Tuition Reimbursement Case
Decided for: for the Parents
Published? Yes
The Decision:   Blount County v. Bowens et. al, 11th Cir 2014

In summary, the school system failed to offer a child with autism an appropriate public education as required by law before his third birthday, and the board agreed to his placement in a private school.  The parent had asked at a follow up meeting regarding his IEP whether the private school she was considering would be appropriate and was told by the board representative (a speech pathologist) that  it would be excellent.  No other options than those previously discussed were offered.  .   Reimbursement was not discussed.  The school rep and parent met again, an IEP was developed, and it was sent to the private school for them to sign (and agree to implement.)

The hearing officer and subsequent judges found that the school’s representative was not informed of the options available for the child in the county, that she had not made alternative resources available to the parent, and that she had agreed to the private school placement, thereby making the school system liable.    There are several lessons to be learned from this case, but this writer suggests before appointing a teacher or speech pathologist as the LEA’s representative in a case involving autism, administrators be sure the appointee knows what resources the school is prepared to offer for an autistic child; and when faced with a parent suggestion that a child with autism  might be better served in a private school, the rep should seek administrative involvement before signing off on the parent request.   For what the judges thought, click on the link above.  For an attorney’s summary, click on Justia Link

August 1, 2014  Reyes v. NYC Board of Education 7/25/2014, Second Circuit Court of Appeals
Key Words;  Tuition reimbursement
Decided for:  The parents
Published?  Yes
Decision:  2nd Circuit Reyes v. New York City Board (2014) Decision

References to psychologist:  The testimony of the DOE  psychologist was referenced four times in this decision.  The key testimony in this case was the psychologist’s report of what happened in the IEP meeting, where it was stated that the services for the child would be monitored and extended as needed

The parents won their case for tuition reimbursement at the due process hearing.   Their award was overturned by the State Hearing Review, who found three months of ABA  and one to one paraprofessional assistance offered by the school system would provide the student with FAPE, and that decision was upheld by the district court.   The circuit court overturned and remanded back to the district court.  New York state law puts the burden of proof on school boards to prove their IEP was appropriate, but that point of law was probably inconsequential in the decision above.   The parents contended that three months of ABA would not be sufficient to meet the child’s needs.  The school’s argument, accepted by the district court,  was that they would have reviewed the IEP in three months and probably would have extended the service.   The circuit court had  ruled that parents were only bound to  consider what was offered, not what would might be offered at a later date.   Additionally, the district court also concluded that one to one assistance was not needed in the 6:1;1 school setting because it was not needed in the private school setting . . . which provided a 3:1:1 setting.   The circuit court found that reasoning flawed.   Although the parents also contended that the eclectic instruction proposed, including TEACCH methodology, would not have provided the child with FAPE, the Second Circuit did not address the issue of ABA vs. TEACCH.

JUNE *

June-Image

June 25, 2014 Results Driven Accountability (OSERS)

Yesterday, ED issued a new public announcement saying it was initiating a new 50 million dollar technical assistance program.  Apparently, OSERS is not just concerned with disparate impact and disproportional representation of minority groups in special education.

The new program reflects the shift in emphasis since 2004 from procedural compliance to an accountability system based on student outcomes (Results Driven Accountability).  With that shift in emphasis, OSERS has found an increasing number of states are failing to meet the needs of their children with disabilities satisfactorily.

This is a MAJOR SHIFT  in ED policy.   The language in both the regulations for Part B and Part C already reflected a shift in emphasis from evaluations conducted to the purpose of labeling, incorporating language in Part B about qualified professionals conducting diagnostic evaluations to identify student needs and in Part C regulations clearly distinguishing between evaluations (to determine eligibility) and assessments (to determine individual student strengths and needs.)  However, as the CEC has pointed out, this is the first time in forty years that OSERS has included student performance as an indicator of compliance.   Whereas only nine states had been found to “need assistance” under the old formula, under the revised criteria, 39 states and the District of Columbia have been found to need assistance.CEC Insider Report (link)  (CEC web page.)

 

MAY *

May

R.E.B. v. State of Hawaii, Dept of Education, District Court   April 16, 2015, District Court
Published ? Yes
Key Words:  Autism, Procedural Errors, IEP
Decided for:  The school system
The Decision:  R.E.B. v State of Hawaii, Dept. of Educ., 2014

The parent alleged a number of deficits in the IEP process.   The Hearing Officer found that none of the alleged deficiencies resulted in a loss of FAPE, and the District Court agreed.   The hearing officer’s decision:

The administrative hearings officer concluded that the phrase “to her ability” allows Student the maximum amount of participation with non-disabled peers she is able to have. Interpreted in that way, the February IEP fulfills the statutory goal of the IDEA to ensure the access of children with disabilities to the general education curriculum in the regular classroom, to the maximum extent possible. Plaintiffs have not shown that the phrase “to her ability” in the February IEP allowed Defendants to prevent Student from participating in the enumerated classes to the maximum extent possible. Absent any such showing, the program’s specification that Student would participate with nondisabled peers “to her ability” was reasonably calculated to enable her to receive educational benefits in the least restrictive environment.

For the details of that decision, see the link above.

APRIL *

download

April 7, 2014  OSEP on Maine’s Cognitive Score Cutoffs and Psychological Processing Deficit Criteria

There has been considerable discussion over the past ten years over the appropriate role of testing for psychological processing disorders in the identification of specific learning disabilities.   In response to two letters (one from this writer) to OSEP complaining about Maine’s requirements  (1) the application of a cognitive cutoff score and (2) the identification of a psychological processing disorder be used to rule out a learning disability, OSEP provided the following responses in November, 2013.

Their response to this author may be seen in its glorious brevity  at OSEP Letter to McBride on ME Criteria but the more substantive letter, which they had attached to my response, went to Mr. Hugo, a professional advocate in Maine.  OSEP Letter to Hugo on Maine Criteria

The major problem they found in Maine’s criteria was the same problem that is found in school systems’ who use discrepancy only or RTI only methodologies without considering the whole child and his or her needs after a comprehensive evaluation.

The federal regulations are quite specific in saying that schools must use a variety of assessments and strategies in identifying a child as disabled that they  may not use a single assessment or tool in determining that a child has a disability.  (Section 300.304 (b).)

OSERS and OSEP have been consistent over the years in saying that no single procedure may be used, either.

Consistent with
§ 300.304(b) and section 614(b)(2) of the
Act, the evaluation of a child suspected
of having a disability, including an SLD,
must include a variety of assessment
tools and strategies and cannot rely on
any single procedure as the sole
criterion for determining eligibility for”
special education and related services.
This requirement applies to all children
suspected of having a disability,
includi those suspected of having an
SLD.   2006 FR 46646

And again on page 46648 of the 2006 Federal Register they wrote:

As required in

  • 300.304(b), consistent with section 614(b)(2) of the Act, an evaluation must include a variety of assessment tools and strategies and cannot rely on any single procedure as the sole criterion for determining eligibility for special education and related services

The key concern I had raised about Maine’s criteria was over the use of a cognitive score cutoff.   A similar (albeit simpler) formula in Wisconsin back in the 1990’s had brought the full wrath of OSEP down on the state.   Mr. Hugo, however, was apparently concerned about both the cutoff and the processing component.  The key paragraph  in the Hugo letter reads:

“Therefore, OSEP construes the LDR [Maine’s Multidisciplinary Team Report] as using a single assessment – here, a test of psychological processing or of cognitive functioning  as the sole criterion for  determining whether a child has an SLD. If this is an accurate interpretation of the LDR, it  would be inconsistent with §300.304(b) for Maine to use such a form because it could result in  children with SLD not being properly identified”

This may appear to be a provincial issue restricted only to Maine.   However, forms drive the process.   Schools in other parts of the country (e.g., in New Hampshire) that use forms similar to the LDR used in Maine may be disqualifying otherwise eligible and need students because of seemingly inflexible rules that are not rules at all.

The federal regulations have never prohibited the use of psychological processing assessments in the identification of student needs or as part of process to develop appropriate instructional strategies for a student who had already been identified.  The decision as to whether that testing is needed in order to identify a child’s individual instructional needs, whether commonly related to the disability or not, as part of a comprehensive evaluation is however now in most states a matter to be decided by IEP teams on a case by case basis.

Guy

UPDATE:  As of this date (4/14) Buckley J. Hugo reported that whie ME had acknowledged the complaint, it had not yet amended its regulations.  It is also probably worth noting for others who may be tempted to file a complaint with OSEP that it took them over TWO YEARS to respond to Mr. Hugo.

A copy of a NH form developed by Drummond/Woodsum for some public agencies with the same problematic first paragraph found in the ME forms:

Revised NH LD Checklist 10_26_08