BEFORE THE STATE SUPERINTENDENT OF PUBLIC INSTRUCTION ) ) ) ) I. BACKGROUND

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1 BEFORE THE STATE SUPERINTENDENT OF PUBLIC INSTRUCTION In the Matter of Salem-Keizer School District 24J ) ) ) ) FINDINGS OF FACT, CONCLUSIONS, AND FINAL ORDER Case No I. BACKGROUND On November 20, 2006, the Oregon Department of Education (Department) received a written complaint from the parent and guardian of a student who resides in the Salem- Keizer School District 24J (District). Under Federal and State law, the Department must investigate written complaints that allege violations of the Individuals with Disabilities Education Act (IDEA) and issue a final order within 60 days of receiving the complaint, unless exceptional circumstances require an extension. On December 3, 2006, the Department sent a Request for Response to the District identifying the specific allegations in the complaint to be investigated. The District timely submitted its Response to the allegations, providing the parents with a copy of the Response. On January 11, 2007, the investigator received from the District information documenting a new placement determination for the student. Because the investigator needed extra time to determine the impact of the new placement on the complaint and because inclement weather made it difficult to contact complainants and staff, the Department extended the timeline for resolution of the complaint to January 31, The Department extended the timeline again to February 6, 2007 because additional information was needed related to determining appropriate corrective action. The Department s complaint investigator reviewed the complaint, the District response and supporting documents, and the new placement documents. Through and telephone interviews, the investigator also obtained information from a District special education program assistant, a District special education area coordinator, a member of the District s Intake Support Team, and an administrator at the student s former attending school district. In addition, the investigator spoke with one complainant by phone and interviewed the other complainant in person. Information from all these sources contributed to the findings of fact in Section III. II. ALLEGATIONS AND CONCLUSIONS Placement Allegations Conclusions Substantiated in part. The complainants alleged that the District did not offer appropriate placement consistent with the student s IEP by denying the student access to two programs similar When the student transferred from another district, the complainants did not immediately seek services from the District or enroll the student in school in the District. However, by

2 to the placement his previous school district provided. 1 October 30, 2006, the District should have but did not implement services comparable to the student s IEP from the previous district. The District also unduly delayed implementing its IEP/placement for the student following a November 2, 2006 IEP meeting. Corrective Action The complainants asked for corrective action in the form of placement in a District individually-paced, online alternative program and tutoring in math and reading in accordance with his IEP. The student s IEP/placement team has reached consensus on the student s current IEP/placement. However, due to delays described above, the Department concludes that compensatory education services are appropriate. The Department also concludes that the additional tutoring services the District is providing (over and above the services called for by the IEP) satisfies the compensatory services requirement. III. FINDINGS OF FACT 1. The student is 15 years old and resides within the District. 2. From the time he was in kindergarten, the student attended school in a neighboring school district. During most of this time, he was eligible for special education as a child with severe emotional disturbance. He refused to comply with academic and behavioral expectations, and he exhibited violent, destructive behavior in the classroom. Staff had to physical restrain the student when he was out of control. 3. The previous school district tried to serve the student in a variety of placements, including general education, learning resource center, and a residential placement. None were successful. For the school year, the student attended a charter school in the District where complainants and the previous district staff both reported that he experienced success. 4. The charter school served students who, for a variety of reasons, needed individualized self-paced instructional programs. The student used a self-paced, online instructional program. The charter school allowed him to use strategies for anger management and self-control that included taking breaks and walking around the school when he felt the need. The student attended this program for the duration of his 8 th grade year without violent or destructive behavioral incidents. 1 The complainants alleged that the District found the student ineligible for one program because of his age and the other program because his reading level was too low. At the time of the complaint, the District offered no services other than reading instruction 1 ½ hours per day.

3 April 2006 IEP 5. The previous school district held an IEP meeting for the student on April 26, His team reviewed a recently completed behavioral evaluation and determined that the student was no longer eligible for special education as a child with a severe emotional disturbance. Taking into consideration team members input and a statement from the student s physician, the team decided that the student remained eligible for special education as a student with an Other Health Impairment, specifically an anxiety disorder and bipolar tendencies, for which he takes medication. 6. At the April 2006 meeting, the team developed a new IEP that included present levels of academic achievement and functional performance as follows: [The student] works best in small group settings. He works well either one on one with an instructional [aide] or with a peer partner. [The student] is easily distracted, so his school setting should be in small settings. [The student] needs to set up with the teacher at the beginning of the school year a signal to show when he is getting frustrated and needs a break. [The student] is good at not going far and returning with[in] 5 to 10 minutes. Because of [the student] s early emotional disability, he has lack of being taught some of his academics. [The student] needs help in his decoding; he works at about 2 grades below his level. [The student] also needs help in his math. He needs to understand how to work with fractions, decimals and percentages. He also needs help with his regrouping and borrowing in his subtracting. 7. The team decided that the student needed specially designed instruction in reading (45 minutes/week) and math (45 minutes/week) and included goals and objectives for those skill areas in the April 26, 2006 IEP. The IEP also provided for extended time on tests and assignments, 5-20 minute breaks and short walks, and access to a learning specialist. 8. The team considered placement in mainstream with ALC/resource room help with less than 21% of the day and rejected this option. The team also considered and selected placement in alternative ed setting with resource room staff less than 21% of the day. The benefits of this placement were small group help at ability level and self-paced. The team agreed that the student s anxieties precluded placement in any regular school placement or standard special education placement School Year 9. After the school year, the previous school district decided to no longer serve out-of-district students, including the student and his three siblings. The 2 By alternative ed setting, the team was referring to the charter school, which operated in some ways like an alternative school. In fact, the charter school converted to a public alternative school at the end of the school year.

4 mother and grandmother received notice of this decision on the first day of the school year. 10. The complainants were reluctant to remove the student from the charter school, where he was making progress, and they petitioned the school board in the previous district to permit the student to continue attending the charter school (now a public alternative school). The board considered the request on September 21, 2006 and notified the mother and grandmother of its decision to deny enrollment about two weeks later. 11. The grandmother called the District on October 11, 2006 to ask about transferring the student and his two brothers to District schools. A special education administrator told the grandmother to enroll the students at the high school for their attendance area. The grandmother described the student s disabilities and asked if the District had an appropriate program for him. The administrator said yes. 12. On October 26, 2006 the mother discussed the student with the special education administrator by phone. The parent said the student had a medical IEP because he was bipolar and had anxiety and seasonal affective disorder and provided information about his schooling history. The administrator again asked the mother to bring the student in to his neighborhood high school to enroll him. The mother was reluctant to enroll her son at the high school because she believed he would not be able to function in that environment. She described the charter school program that had worked well in the previous district and asked for a meeting to explore alternatives, especially a small school setting with self-paced online learning. Mom shared background about the student and told staff he needed a small school environment, and self-paced online learning. 13. On October 30, 2006, the complainants met at the high school with the special education administrator, a case manager, and two counselors. 3 At this meeting, District staff reviewed the student s special education records, including current revaluation documents and the April 2006 IEP. The mother and grandmother described the student s disabilities and the charter school program in the previous school district. They stated that the student had failed in all other school environments and needed a similar alternative program. District staff suggested Alternative Program A, which features online learning and after-school hours. The complainants agreed that it sounded ideal and completed a Request for Alternative Program Placement form. 14. On October 30, 2006, the District gave the mother and grandmother a notice of team meeting to be held on November 2, The purpose of the meeting was to review existing information about the student and to review his IEP and placement. On November 2, 2006, the District held this meeting with the mother, the grandmother, 3 The District response characterized this as an IEP meeting, but the mother and District staff who participated in the meeting said it was not an IEP meeting but was instead an opportunity for the parents to meet with district staff and exchange information.

5 the case manager, the District special education administrator, and a regular education teacher. At the meeting, the mother announced that District Alternative Program A had denied the application because it is a program for high school juniors and seniors who need to recover credits to graduate from high school. The student had not even begun high school, so he was not credit deficient and thus ineligible according to program guidelines. Staff suggested District Alternative Program B, which also offered online learning, so the mother filled out another Request for Alternative Program Placement form requesting placement of the student in that program. 15. Participants at the November 2, 2006 meeting reviewed the student s records and IEP from the previous district and considered information provided by the mother and grandmother and determined that no additional information was necessary to determine whether the student was eligible for special education. The team decided to adopt the eligibility and IEP from the previous school district and did not consider any assessment information beyond that used by the previous school district in developing the April 2006 IEP. 16. At the November 2, IEP meeting, staff modified the April 26, 2006 IEP/placement by: a. Changing the anticipated location of all special education services, supplementary aids/services, modifications, and accommodations; and supports for personnel from school to Reg Ed/LRC ; and b. Changing the placement determination form. 17. The revised placement form lists two placement options regular class with 21-60% resource room and regular class with less than 21% resource room or other special class. The team rejected the first option as too overwhelming for student. The team selected the second option because it offered the student the benefit of small group help at ability level and self-paced and extended time and frequent breaks. The form notes a possible harmful effect of the selected placement as less contact with mainstream peers. 4 The team agreed that if Alternative Program B denied the student s application for admission, they would meet again to consider other placement options. 4 The Department notes confusion in the description of placement options and descriptions of benefits and possible harmful effects, especially the suggestion that regular class placement with less than 21% resource room would offer the student less contact with mainstream peers than regular class placement with 21-60% resource room. Also, nothing on the IEP/placement form or in the meeting minutes explains the apparent incongruity between the team s efforts to find a self-paced learning option, such as Alternative Programs A & B, and the description of the placement selected on the placement determination form. The Department recommends that the District provide further training to staff on effective documentation of placement determinations. For technical assistance, see:

6 18. District staff documented the decision to adopt the existing eligibility determination and IEP noting that the District considered and rejected placement in the mainstream with Learning Resource Center (LRC) support and placement in an Emotional Growth Center (EGC), explaining that they do not meet [the student] s needs at this time." Soon after the meeting, the case manager notified the mother that Alternative Program B required a reading test as part of the application process. On November 8, 2006, the mother took the student to the high school to take the required reading assessment. At an unspecified date after the testing, the case manager called the mother and notified her that the student s reading score was too low for Alternative Program B. The mother asked what other options were available, and the case manager suggested that the student participate in a remedial reading program to bring up his reading level so he could reapply for Alternative Program B. The mother said that the student would not be able to function in the high school setting and that she wanted him to receive a full academic program, not just reading remediation. The case manager suggested that the student could take content area study packets home and encouraged the mother to consider the reading program. The mother said she would call back after thinking about it. 20. After hearing nothing from the mother for several days, the case manager attempted to reach her by telephone and beginning on November 21 but did not succeed in reaching her until November 29. During this call, the mother reiterated to the case manager that she wanted a full academic program and not just reading remediation for the student. She also notified the case manager that she had filed a complaint with the Department. 21. On January 5, 2007, the District convened another IEP meeting for the student. Attending were: the mother, the grandmother, a special education teacher-intake support team member, a regular education teacher, a counselor, a high school administrator, and two special education administrators. The special education director from the previous district was invited but illness prevented her from attending. The team reviewed the student s educational history, and the mother and grandmother described his emotional and behavioral challenges. Ultimately, the team adopted the existing IEP and decided that the District could implement the student s IEP by providing tutoring in math and reading and allowing the student to take online classes available through Alternative Program B. Although he would be 5 The District documented this decision on two forms: a Prior Notice about Evaluation/Consent for Evaluation form and a Prior Notice and Consent for Initial Placement into Special Education form. Both forms listed Alternative Program A and Alternative Program B under the heading of other factors considered The Department notes possible confusion from the use of these forms to document the decision to adopt the existing eligibility and IEP. Identification of the two District alternative programs as other factors considered in a prior notice of a District s proposal and request for parent consent to conduct an evaluation and a prior notice of the District s proposal to provide special education and consent for the student to receive District special education services unnecessarily merges issues and decisions that District staff and IEP teams should deal with separately and sequentially. The Department recommends that the District provide further training to staff on the use of these forms.

7 enrolled at his neighborhood high school, he would receive tutoring at an alternative high school that houses several secondary level alternative programs. He would be able to access the online classes either at the alternative school or at home. Because the end of semester was approaching, the team decided it would be best for the student to begin online classes on January 29, 2007, the first day of the new semester. He would begin work with the tutor on January 11, The complainants agree that this plan addresses the student s need for a self-paced learning program. 22. Severe weather, school closures, and miscommunication among staff members caused a slight delay in the tutoring and confusion about the student s status relative to Alternative Program B, but at the time of this order, the District is fully implementing the student s IEP in the placement agreed upon at the January 5, 2007 meeting. The student s current IEP provides for special education services in reading (45 minutes/week) and math (45 minutes/week), but the District is providing the student with more instructional time than the IEP requires. He is receiving individual tutoring in reading and math 75 minutes per day (300 minutes per week), Monday through Thursday. The tutoring began on January 16, 2006 and is scheduled to continue until June 15, IV. CONCLUSIONS OF LAW The Individuals with Disabilities Education Act (IDEA) provides that a group of persons including the parents and other knowledgeable about the child determine an appropriate placement for the child 6 and must base that placement on the student s IEP. 7 School districts must deliver services in the least restrictive environment appropriate for the child 8 but must also ensure the availability of a full continuum of alternative placements for children whose IEPs cannot be implemented successfully in a regular classroom. 9 IEPs must be implemented as soon as possible following the IEP meeting. 10 Here, the previous district developed an IEP that supported the student's placement in the charter school. Familiarity with the student s disabilities and the student s history of failure in a variety of placements led to the team s support of the charter school placement for the student. The previous district and the parent agree that the student made academic and behavioral progress in the charter school, which allowed for selfpaced learning, among other things. When the charter school changed its status to a public alternative school of the previous district, the complainants petitioned but were refused continued attendance for the student at the alternative school. The complainants then sought a similar program from the District (1)(a) (1)(c) (1)(b) (2)

8 The 2004 IDEA Amendments address the responsibility for serving transfer students for both in-state and inter-state transfers. If a student transfers from one district to another in the same state, as happened in this case, the law requires that the receiving school district consult with the parents and provide a free appropriate public education (FAPE), including services comparable to those described in the IEP from the previous district until the new district: (1) Adopts the child s IEP from the previous public agency; or (2) Develops, adopts, and implements a new IEP that meets IDEA requirements. 11 After a delay of about two weeks, caused in part by the mother s reluctance to enroll the student in his neighborhood high school, the District convened an IEP meeting and adopted the IEP from the previous district. The team agreed to try to find an alternative program that offered the same opportunity to implement the student s IEP as the charter school in the previous district. When both District alternative programs denied the student admission, the District did not immediately seek another appropriate placement in which to implement the student s IEP. The reading remediation program that the District offered next, in the absence of any other instruction, was inconsistent with the student s IEP and would not have ensured the provision of a free appropriate public education to the student because it would not have addressed all of the student s educational needs. The District ultimately found a placement option similar in all significant respects to the placement in the previous district (and consistent with the decisions made at the November 2 IEP/placement meeting) and began implementing the student s IEP. Nevertheless, the student was without any educational services until January 16, when he began working with a tutor, and did not begin the rest of his educational placement until January 29, October 11 to November 2, The complainants first contacted the District on October 11, On October 11 and 26, the District urged the complainants to enroll the student at the neighborhood high school, which they did not do. From the District s perspective, enrollment at the high school meant that the student was officially in the District and would have initiated the IEP/placement process. From the complainant s perspective, enrollment at the neighborhood high school meant putting the student in an environment that they believed would not meet his needs. At the October 30, 2006 meeting, the District knew that the complainants were seeking services from the District, and the District had the student s April 2006 IEP. At that point the Department finds persuasive evidence that the District was subject to the IDEA 2004 requirement to provide a free appropriate public education, including services comparable to those described in the IEP from the previous district. This obligation was in effect for two school days, until the November 2 meeting, when the District adopted, with some revisions, the IEP and placement from the previous District CFR

9 November 3, 2006, to January 11, The Department concludes that the District did not implement the student s IEP and placement as soon as possible following the November 2, 2006 IEP meeting, and this lapse resulted in a lack of appropriate services to the student. The placement form from the November 2 meeting documented that the team selected the option of regular class with less than 21% resource room or other special class, noting that this option provided small group instruction at ability level and self-paced learning. At the same time, the prior written notice provided to the complainants stated that the team considered and rejected placement in regular education with LRC support and placement in an EGC because they did not meet the student s needs. However, the evidence indicates that the District left the alternative school enrollment process to the complainants and did not make any arrangements for providing interim educational services to the student pending completion of this process. The Department concludes that the student missed 34 school days, from November 3, 2006, until the District began providing tutoring services on or about January 11, 2007, in accordance with the team s decisions. V. CORRECTIVE ACTION For the reasons explained above, the Department would normally order the District to offer compensatory education services. However, the District is now not only implementing the student s IEP but is providing the student with 300 minutes of math and reading tutoring per week, which is much more than the 90 minutes per week that the IEP requires. Because the District is already delivering these supplemental services to the student and is committed to continuing them through this school year, the Department concludes that no additional compensatory education services are necessary. 12 Dated this 8 th day of February, 2007 Nancy J. Latini, Ph.D. Assistant Superintendent Office of Student Learning & Partnerships APPEAL RIGHTS: You are entitled to judicial review of this order. Judicial review may be obtained by filing a petition for review within 60 days from the service of this Order with the Marion County Circuit Court or with the Circuit Court for the County in which you reside. Judicial review is pursuant to the provisions of ORS The Department would not normally consider services provided during regular school hours to be compensatory education. In this case, the student s schedule of online classes is flexible, and the tutoring program does not supplant those classes or otherwise reduce the student s access to the general curriculum.

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