The Special Educator, Volume 28, Issue 17 March 8, 2013

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1 The Special Educator, Volume 28, Issue 17 March 8, 2013 Article: Did district properly conclude teen s threat was unrelated to ADHD? - A student in Maine s primary disability was listed as ADHD, but the disabilities of bipolar disorder, ODD, and mood disorders were listed also. - After striking two other students and a teacher, and threatening a second teacher, she was suspended and a MD meeting was held. - The MD team determined that her actions were not caused by her disability of ADHD. - The ED reviewed the finding and found that only one of the disabilities was considered in the team decision, instead of all disabilities. - The ED stated that any one of the disabling condition can be said to be causative or to have a direct and substantial relationship to the conduct, then the conduct is a manifestation of the disability. Article: Final IDEA Part B regulations simplify access to public insurance - On February 12 th, the Education Department released the final regulations related to obtaining parental consent to access public benefits or insurance to pay for special ed services. - Before the new regulation, public agencies needed parental consent each time they needed access to the public benefits or insurance, which caused unnecessary costs and administrative burdens. - The new regulations require the parental consent only prior to the first time the public benefits are accessed, and annually thereafter. It also states that the parent must understand and agree that the public agency may have access. - A written notification must ensure that the parents are fully informed of their rights prior to the accessing of the benefits. - It was explained that the parental consent lasts as long as Part B services are needed for a student who remains in a school district or changes schools within the district. - The final IDEA Part B regulations will take effect March 18, Article: Recognize truancy as behavior that impedes learning - If a district discovers that a student s truancy was indicated by an undetected disability, the district may have already denied FAPE. - The more time a student is away from instruction, the greater the effect it will have on the student s education. - Here are some questions and an attorney s answers on the subject: What can an IEP team do if it has unsuccessfully attempted various methods to address a student s poor attendance, including conducting an FBA, creating a BIP, and offering student and parent counseling? 1. Try other ways, like bringing in an outside consultant that may have fresh ideas, but you can t quit trying. Are we covered if we offer to evaluate a student with chronic truancy, who has a medical diagnosis of ADHD, and his parents deny consent for the evaluation? 2. Make sure to document your offer and the parents refusal. This may come up again later, and the opportunity to ask why consent is not given. Let the parents know that there may be services available under Section 504. If a special education student who is habitually truant does not respond to relevant services in his IEP, can his district proceed with criminal prosecution for violation of the state mandatory attendance law? 3. Yes. It may be compulsory for schools to enforce the attendance laws, but the school must be sure that the truancy problems have been fully addressed by the IEP team process. What should we do if a parent gives us a doctor s note that excuses a chronically truant student from school but refuses to sign off on an assessment plan or fill out forms for homebound services? 4. Explain to the parents that more information is needed before homebound services can be provided, and that if that isn t available, the district may need to proceed with a truancy action. How should we respond if parents refuse every offer of services, including our offer to let a student with disabilities access his class remotely? 5. During an IEP discussion, tell parents that the school is willing to devote resources and technology to get the student involved in education. If the student refuses to attend, behavior interventions may be needed. Home tutoring may be an option.

2 REVIEW OF CASES INVOLVING USE OF RESTRAINT, SECLUSION From the courts: Article: New York s ban on aversives comports with IDEA, Section The parents of a group of students with severe disabilities failed to convince the court to reinstate their challenge of a regulation prohibiting the use of aversives. The court ruled that the regulation did not violate federal law. Article: Court OKs settlement for pupil injured by restraints, denied FAPE - A $65,000 settlement was awarded to be divided by the parent, student, the medical treatment facility, and the two attorneys. Article: Danger posed to others on playground justifies restraining 6 th -grader - An 11-year-old with cognitive deficits was restrained by two security guards to protect the students and staff. - There was no evidence that the guards acted unreasonably, and the case was dropped. From state due process: Article: Subjecting 5-year-old to locked room, Rifton chair offends IDEA, state law - A Wyoming district was ordered to cease the use of locked seclusion and mechanical restraints with all students immediately, revise the child s IEP, provide in-service training, fund an FBA, and give 100 hours of compensatory education to the student. Article: Evidence that restraints would trigger student s aggression renders BIP flawed - FAPE was denied a student when the district ignored knowledge of the parents and its own FBA when writing the BIP. - The BIP was inappropriate because it utilized options that would dramatically increase the likelihood of aggression by the student. From OCR: Article: District offers to spell out proper use of aversives to resolve 504 claim. - The improper restraining of a child with a cognitive impairment on two occasions prompted an investigation. - The district offered compensatory services to the student, and training for staff members in the proper restraints and how to use them. Article: Utilizing belt leash to stop elopement amounts to denial of FAPE - A student with autism was restrained continuously, which led to the denial of FAPE. - The district created a protocol for addressing elopement behaviors and will provide compensatory services if needed. Article: Restraining student without IEP team approval may be Section 504 misstep - Eighteen students with various disabilities were mechanically restrained in a North Carolina district. - The resolution agreement signed states that necessary compensatory services will be provided to those students, and the staff will all be trained on the proper use of restraints and procedures for Section 504 plans and IEPs. Article: Attorneys: OCR letter doesn t mandate disability-specific teams - Additional opportunities for students with disabilities should be offered, and supported just as any other athletic activity. - Here are some questions frequently asked of some attorneys, and their responses: Are school districts required to create disability-specific teams? Answer: Districts are not mandated to create separate teams or activities. The decisions will be individual, so failing to create the separate teams is not likely to violate Section 504. What can school districts do to expand athletic opportunities to students with disabilities? Answer: To expand opportunities to students with disabilities, if you can t create your own team, work with other schools in the district or utilize community programs that can be modified. Other options are to offer a student the opportunity to be the team manager or allow the student to work out with the team in the sport they desire to play. There should always be student input about these options.

3 Can creating separate teams for students with disabilities amount to discrimination? Answer: The OCR is encouraging districts to make sure all kids who want to participate in athletic activities get the chance, but they realize it is impossible for all to participate on the same teams. Article: Speech-hearing group makes new push to reduce paperwork in special ed - In 2004 Congress tried to help streamline the special ed process. Little progress was made. - ASHA s director of school services is concerned that the paperwork may overtake the actual services being provided. - In February of 2013, a steering committee was formed to carry the process of a GAO study that may improve the situation. Article: Parent can t persuade High Court to hear revived IEP challenge - A Houston parent has filed multiple complaints about her child s IEP not being appropriate. - The courts have three cases pending. - The courts dismissed the latest IEP challenge since an earlier court had found the IEP to be substantively and procedurally appropriate. Article: Train teams to write detailed, current present levels of performance Key Point: - When a New York district failed to state the PLOPS sufficiently for a student with autism, the parents were awarded reimbursement for private school costs. - The SRO found that it was hard to tell if the goals and objectives really met the student s needs. - To enable IEP teams to develop IEP s that meet students needs, the following five steps are suggested: 1. Bring current data to the IEP meeting. Data a year or older should not be used. Avoid general statements, i.e., he is reading well or he could do better if he tried. 2. Be cautious when using numbers in PLOPs. The statement of 8 out of 10 times may not be consistent. 3. Review test scores, evaluation results prior to meeting. All team members should have a chance to review the scores, and if parents see them prior to the meeting, be sure to tell them that the results will be explained at the meeting. 4. Write PLOPs in positive terms. These should tell what the child can do, not what he can t. 5. Use stranger test to assess PLOPs. If an IEP includes measurable data and specific details, someone not familiar with it should be able to identify what the child can do. Article: Ensure outside programs implement students IEPs - When a student is in a private program, the home district is still responsible for making sure the IEP is adhered to. - Consider these guidelines: Ensure outside program staffers are aware of students IEP provisions. Training may be necessary. Make clear to parents the need to report concerns directly to the district. Both parents and staffers should report any concerns they have to the district. Check periodically to ensure that the plan is being implemented. Ask about documentation of how and when implementation took place. The district should review this documentation and keep in touch with parents. Be ready to provide compensatory services. If a breakdown in documentation or communication occurs, the district should promptly determine what, if any, compensatory services a child may need to prevent a claim. Article: Take steps to meet medical needs of students on school bus - When a medically fragile student is transported to school, even the bus must have equipment and be able to provide care. - Consider the following: Know when to administer medical procedures on bus. Medical procedures must be performed if needed on the bus, as well as the classroom. Non-emergencies can wait until arrival at school. Consider proper provisions for storing medication, medical equipment. Some equipment must be secured to prevent damage, and medicines may need to be kept at a certain temperature. Seek advice from medical professionals. The advice of medical professionals should be sought in determining whether a student should be transported on a bus or not. Know which staff members can perform medical procedures. Each state has laws stating requirements needed before performing a medical procedure, so a bus driver may not be the best choice.

4 Article: Wrestler s cold sore fails to qualify as disability under Title II - A Pennsylvania district shut down its wrestling program due to a student who had a cold sore. - A Title II action was not appropriate for the district over the temporary impairment. No major life activities were limited. Article: Block billing, limited success justify $25K reduction in parent s fee award - Although parents of a grade school student recovered attorney fees the denial of FAPE for their child, they received only part of what was requested. - The attorney fees the parents wanted reimbursed were not detailed in the billing. Time spent was blocked together, instead of billing for each separate task. - The court noted numerous flaws in the parents fee petition, and the lack of sufficient itemization, ruled to reduce the award. Article: Omissions in restraint logs alone don t establish 504, Title II violations - A Florida student with autism was restrained to prevent injury to himself and others. - In this case, the documentation lacked information about what prompted the behavior. - The parents were unable to convince the court that the school staff intended to discriminate against the student, or conscience-shocking behavior. - The court also explained that the parents were unable to prove the staff members were deliberately indifferent to their child s needs, thus it ruled for the district. Article: Student s return to public school requires district to consider new IEP - A student with an IEP in Maine returned to public school after spending a year in a private school, but was not reevaluated even though the IEP had expired. - A magistrate judge determined that the district violated child find duties, and the district may end up paying for the student to attend a special education boarding school. - The judge noted that since the IEP had expired within a few months of the student s return, it would have alerted them to reevaluate to see if services were still needed. Article: Parents failure to endure district s due process request prevents IDEA action - The parents of a New York student did not wait to go through a due process before filing a civil suit against the district. - The necessary administrative remedies were not exhausted. - The court granted the district s motion for dismissal of all claims. - In New York, the court lacked jurisdiction since the parents did not wait to challenge any decision from a due process hearing before filing the civil claim. Article: Student s progress in comprehension, fluency shows meaningful benefit Key Point: - Since a California grade school student with SLDs made significant progress under the IEP written, the courts determined that she received FAPE. - The parents of the child sought reimbursement for a private program, but the judge denied the request due to the data that showed the IEPs for 2 nd and 3 rd grades were reasonable calculated to produce benefit appropriate for the child s limitations. - Although the child did not progress at the same rate as the nondisabled peers, there was slow-but-steady progress in fluency, comprehension, and other standards. Article: 9 th -grader history of progress validates district s offer of services - The parents of a 9 th -grader claimed their son did not make meaningful progress in grades 6-8. They claimed he was denied FAPE.

5 - The New York court noted that the student made passing marks and advanced from grade to grade, which gives evidence that his IEP was appropriate. It was also noted that test results overall achievement levels were comparable to those of nondisabled peers. - Because the proposed IEP continued existing services and added new ones, such as assistive technology and a change in the educational methodologies, the court ruled the student would have benefited from a public school education. - The parents were denied reimbursement. Article: District raises state-created danger theory to deflect liability for assault - When a 10-year-old was sexually assaulted for the second time by the same classmate, his mother sued the district, claiming the teacher breached assurances to protect the child, and her child s 14 th Amendment s right to bodily integrity. - Under the state-created danger theory, districts can be held responsible for a student s injury if an employee, acting with deliberate indifference, created or increased the risk of a special danger to the student. - The court found that there was no evidence that the teacher intentionally or recklessly broke a promise not to send the child to the restroom with his alleged attacker. - The Michigan court granted the district s motion for summary judgment on the case. Article: District has no constitutional duty to protect child s safety around pool - A fourth-grader with a hearing impairment and a history of seizures drowned in the pool of a Texas district s summer program. - The District Court found no evidence that the district violated the constitutional due process rights of the student. - Physical injury to, or death of, a student violates due process only when 1) the harm is inflicted by a school employee; or 2) a district breached a duty to protect the student that arose from a special relationship between it and the child. - In this case, the estate claimed that the district s failure to adequately supervise students, have a lifeguard posted, and have certain emergency-alert systems in the pool area all contributed to the child s death. - The record showed that there was no special relationship with the student that gave rise to a constitutional duty to take steps to protect her. - With no evidence that the district violated the child s due process rights, the District Court ruled the estate s case could not advance. Article: District s proposal for out-of-state school lapses for stay-put purposes - A Hawaii district promised not to implement the proposed placement of a student in a Texas residential school, then, later asserted that the Texas school was the student s stay-put placement. - The court pointed out that the ED was no longer seeking to place the teen out-of-state, and that the placement would not be implemented. - The courts generally hold that a child s last agreed-upon or last implemented IEP placement will be his stay-put placement. - The Circuit Court affirmed that the private school selected by the parents was the student s stay-put placement. Letter of Clarification Article: CEIS funds may go toward RTI for struggling general ed students - Part B funds can only be used for students in RTI that are not currently receiving special education and related services, but need extra help with academics or behavior. - Districts need to be careful how they fund their RTI programs. - 15% of Part B funds may be used for coordinated early intervening services. - Tier I of RTI would not be appropriate use of this funding because it does not apply to students struggling academically or behaviorally. - Tier II may be appropriate use of the funds if small groups of struggling students receive specialized instruction. - Tier III could use Part B funds as long as the activities and support are for those students not qualified under IDEA. Article: Districts must consider modifications to extracurricular athletics - Equal opportunities to participate in extracurricular activities should be given to students with disabilities.

6 - The OCR gave a hypothetical situation as an example of a modification that would allow participation: giving a visual cue to signal the start of a 200-meter dash would not alter the track meet or give the student unfair advantage over other runners. - OCR states that athletics offer benefits of socialization, fitness, and teamwork, as well as leadership skills, and districts must make more of an effort to ensure that students with disabilities have equal opportunity to participate. - If an unreasonable modification is requested, the district should consider other modifications that might enable the student to participate. - Section 504 does not prohibit districts from imposing skill and ability requirements for an activity, and modifications must not fundamentally alter the activity. - Alternate activities may be a good option, and OCR encourages districts to be flexible and creative. Article: Teen s move to new LEA justifies end of homebound services - A high school student with a disability moved out of an Arizona district in early 2011, and the district continued to provide homebound services until the end of the school year. - The old district was willing to continue homebound services for the school year if the parents provided an updated Medical Certification form and if the student applied for open enrollment, or moved back into the their district. - The parents did not provide the necessary documents, nor did they reestablish residency within the district. - The OCR determined that the homebound services were not an obligation of the district. Article: Grouping 3- to 26-year-olds together satisfies comparability requirement - OCR found no evidence that a Michigan district violated Section 504 or Title II by grouping such a wide age-range of students within close proximity of each other. - It states that districts should strive to provide disabled students with facilities that are comparable to what nondisabled students enjoy. - The district claimed they purposely grouped the classes together to foster social interactions, which they deemed beneficial for all the students. Interactions between classes only took place during lunch, assemblies, or in the hallways. - The district staffed each classroom to ensure safety, and a behavioral specialist stated that the older students, even those with severe emotional impairments, were protective of the younger ones. Article: Class within class in general ed setting is inappropriate for 5-year-old - The parents of a child with Down s syndrome claimed that a California district denied FAPE when it offered to place the child in a special day class. - An ALJ determined that the child, who was unable to keep pace with her classmates, or to understand three or four word instructions, and couldn t recognize the letters in her name, would have to be isolated from her classmates and work only with her aide to get educational benefit if left in a general ed setting. - The ALJ did determine that the district denied the child FAPE by not having a general ed teacher attend the IEP meeting. - The ALJ directed the district to provide compensatory services for failing to include a general education teacher in the IEP meetings to explore inclusion opportunities. Article: Private school probation supports ED s offer of special ed placement - The decision to place a student with an OHI in special education classes was opposed by the parent, who filed IDEA claims. - The student was on probation at the private school for skipping study hall and failing to complete homework assignments. - Evidence showed that the student was academically average, that he required extended time, chunking of assignments, and reminders and redirection to complete work, which helped determine his LRE. The IEP team discussed different placements before the decision to place the student in special education classes for all core subjects except science. - The IHO entered a judgment for the ED, stating there was no evidence of procedural or substantive violations. Article: Guardian s request for case study not equal to informed consent - A guardian for a student with ADHD maintained that her request for an evaluation was consent for it to be done. - No evaluation was done because the consent forms were not signed and returned to the district.

7 - The IHO found no evidence that the district had actually provided consent forms to the parent. - The IHO concluded that evidence showed the student would have been eligible for an IEP, and therefore the procedural violation denied FAPE to the student. - Remedial action was in order. Article: Limited scope of assessment requires district to fund IEE - A Pennsylvania district called the discontinuation of a student s written language instruction a change in instructional approach. - An IHO found that only two subtests of one assessment were used to make the decision to change the IEP. - The IHO pointed out that IDEA prohibits using a single measure or assessment to determine students services. - Noting that the district removed a very intricate writing goal from the IEP based on the results from the one assessment tool used, the IHO found the parents were entitled to an IEE at public expense.