Jan. 2011: Intellectual Disability vs. Mental Retardation

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ A school psychologist recently asked me a good question:  Must a medical statement for a student considered for mental retardation eligibility state that the student has mental retardation?  Under Oregon regulations, no.  The purpose of the medical statement is to "indicate whether there are any sensory or physical factors that may be affecting the child's educational performance."  In other words, the purpose of the medical statement is to rule out other explanations for the student's delay, not to "diagnose" mental retardation.  And, while we're on this topic, on October 5, 2010, President Obama signed "Rosa's Law" which changed all of the references in IDEA and other federal statutes from "mental retardation" to "intellectual disability", a movement consistent with the trend in the mental health/developmental disability community.  The law does not require states to change terminology in state law, but many states are moving in this direction.  For more background, read this blog.

Jan. 2011: What IEP is implemented for a transfer student?

Marshall v. Monrovia SD  (9th Cir., Dec. 15, 2010) ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ A very severely developmentally disabled student attended a virtual charter school in California.  After several years of an IEP that called for independent study/home instruction, the charter school and the parent agreed to an IEP that placed the student in a general education third grade classroom full time.  This IEP was not implemented as the parent immediately enrolled the student in a neighborhood school. A receiving district of a student on an IEP must provide FAPE, including services comparable to those on the student's IEP.  The receiving district concluded that it would implement the last implemented IEP for the student, not the new IEP that was never implemented.  The administrative law judge and the Ninth Circuit agreed, stating: "providing services in accordance with the previously implemented IEP effectuates the statute's purpose of minimizing disruption to the student while the parents and the receiving school resolve disagreements about proper placement."  The court also agreed that the district's offer of FAPE with placement in a special class was the least restrictive environment appropriate for the student.

January 2011: Repeated suspensions & "no pattern" decision

East Metro Integration District  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~    A recent Minnesota state complaint illustrates how the "no pattern" rule applies.  A 10thgrade student with a specific learning disability was suspended in October for 4.5 days and in December for 3 days, both for theft.  On the last day of school before winter break, the student was suspended for possession of a weapon, pending completion of an investigation.  This suspension continued for the first 8 days after winter break, for a total of 16.5 days of suspension during the school year.  The student then enrolled in another school district. Was the district required to hold a manifestation determination meeting before the 11thday of suspension?  Here, the Minnesota Department of Education said "no" because the behaviors were not substantially similar (weapon vs. theft), so there was no "pattern" so no manifestation determination meeting was required.  Of course, determining "pattern" also requires looking at the total number of days of removal and the proximity of the removals to one another.  MDE apparently concluded that the total number of days and proximity of days did not fall over the "pattern" line.  This is consistent with the general opinion that "no pattern" is justifiable up to about 17-18 days in a school year as long as those days are not too close together.  The MDE stated that it would inform the current district that a manifestation determination meeting would be required before any further suspensions during the school year.  Why?  Because the "no pattern" exception buys a very few number of extra days over ten, and those extra days had now been used up by the previous school district.  This means that if the team at the new school concludes that the student's behavior IS a manifestation of the student's disability, the new school district may not suspend or expel the student for that behavior.  The school could still implement a 45 day removal but only for drugs, weapons, or serious bodily injury.

Nov-Dec 2010: Rights of Noncustodial Parents

Issue of the Month:  The Rights of Noncustodial Parents in the Special Ed Process ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~   I recently helped a district sort out the respective parent rights of a custodial father, noncustodial mother and a person who was supposedly the biological father.  Luckily, Oregon had two due process hearings in 2004, DP 04-101 and DP 04-111, that provided some guidance in this area.  To summarize: 1.  Noncustodial parents must be afforded the same opportunity for notice of IEP and placement meetings (and other special education meetings) as custodial parents.  2.  A noncustodial parent must be afforded the opportunity to attend and participate in IEP and placement meetings, to the extent compatible with any court orders.  3.  The noncustodial parent has the right to express concerns and have his or her information considered in developing and reviewing the child's IEP.  The parent may provide information regarding the strengths of the child and concerns for enhancing the child's IEP, and participate in discussions about the child's need for special education and related services.   4.  A district may terminate the noncustodial parent's participation if the parent persists, after reasonable warnings, in making negative comments about staff and the custodial parent.  5.  The noncustodial parent does not attend the IEP meeting or other school meetings as one of the decision-makers.  It is the custodial parent's opinion that is sought in determining whether the team has reached consensus at the IEP meeting, and the custodial parent's consent that is requested when consent is required.  6.  Noncustodial parents do not have the right to request specially scheduled IEP meetings as a custodial parent would.  7.  Noncustodial parents do have the right to prior written notice of special education action based on decisions made at the meeting. 8.  Noncustodial parents do have the right to have access to confidential school records about the student.   9.  Noncustodial parents do have the right to be regularly informed of the student's progress (IEP progress reports,report cards).  Note:  The scope of a noncustodial parent's authority depends on state law, so school districts outside of Oregon should check their own state's rules on this issue.

September 2010 - How much progress is "meaningful"?

Case of the Month:  M.P. v. Poway Unified School District (S.D. Cal., July 12, 2010) How much progress is "meaningful progress"? ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~   The story:  In 2nd grade, the student was identified as having a specific learning disability and a communication impairment.  His fourth grade IEP included 90 minutes of academics four times per week, 30 minutes of speech-language per week, and both in class and pull out OT services each week. At an IEP meeting at the end of fourth grade, the parent was disappointed to learn that the student was not making the progress toward his IEP goals that she thought he was making.  The student had met his goals in communication, math word problems and fine motor skills, but had made little progress on his writing/spelling goal. The learning center teacher reported that he  needed more time for his goals in reading, writing, fine motor skills and organizational skills.  The learning center teacher and classroom teacher both explained that he had worked hard and had made progress on most of the unmet goals.  The summer after fourth grade, the parent retained a private psychologist as an advocate for the family, enrolled the student in a private school and a year and a half later requested a due process hearing for tuition reimbursement.  The test:  The court stated that FAPE required the district to (1) address the child's unique needs, and (2) provide "adequate support services so the child can take advantage of the educational opportunities", (3) in accordance with the student's IEP and LRE requirements.  Only (1) and (2) were at issue here. The outcome:  Both the ALJ and the court found that the IEP addressed the student's unique needs - here, auditory processing - by including accommodations such as extra time on tests, use of word processing software on writing tests and assignments, graphic organizers for writing, sensory breaks, preferential seating, etc.  As to whether the services were adequate, the principal gave convincing testimony that although the student did not "meet" grade expectations, the student showed "tremendous growth" from fall to spring in reading, math and language on state assessments, and both teachers gave specific examples of progress.  While the student did not meet all his goals "or reach the level of an average proficient student" according to the testing, his report card, and the IEP Progress Report, the evidence was sufficient to show meaningful progress.  The lesson learned:  The student was receiving a substantial amount of services from the district and the district effectively used "growth data" from fall and spring to show progress across academic areas.   More frequent progress monitoring data would also be effective to show growth as well as provide a basis for intervention decisions along the way.