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.

June 2010

Clarification: "Section 504 only" students and discipline for use or possession of drugs or alcohol

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Section 504 includes the following provision:

"For purposes of programs and activities providing educational services, local educational agencies may take disciplinary action pertaining to the use or possession of illegal drugs or alcohol against any student who is an individual with a disability and who currently is engaging in the illegal use of drugs or in the use of alcohol to the same extent that such disciplinary action is taken against students who are not individuals with disabilities. Furthermore, the due process procedures at section 104.36 of title 34, Code of Federal Regulations (or any corresponding similar regulation or ruling) shall not apply to such disciplinary actions."

What does this mean?

A "504 only" student may be disciplined without regard to Section 504 protections (no manifestation determination meeting required) in the following circumstance:

(1) The student engages in the use or possession of illegal drugs or alchohol in violation of a school policy;

(2) The student is "currently engaging in the illegal use of drugs or in the use of alcohol"; and

(3) The discipline is the same type of discipline that would be taken against students who are not disabled.

What does it mean to "currently engage" in the illegal use of drugs or use of alcohol?

Section 504 does not say, but OCR has stated that the use has to be recently enough to justify a reasonable belief that the use is an ongoing problem. Evidence of current use may be a student's confession, a drug-alcohol evaluation, a juvenile report. Districts should be cautious in relying on hearsay statements by students or staff to establish "current use".

May 2010

N.D. v. State of Hawaii Department of Education: 54 IDELR 111 (9th Cir. April 5, 2010): Furlough Days

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The story: The State of Hawaii is one large school district. Just as the State of Oregon implemented "furloughs" for state workers this year, Hawaii did the same for its teachers, reducing the school year by 17 days. Several parents of students with disabilities argued that the reduction resulted in a change in placement and that the students had the right to "stay put" pending the outcome of their due process hearing on the matter. If the parents were right, the State would not be permitted to implement the furlough days with regard to these children.

The ruling: The US District Court and Ninth Circuit Court of Appeals disagreed.

Both Courts ruled that the furlough days were not a change in placement triggering "stay put" because the purpose of the "stay put" provision was to prevent exclusion of students with disabilities. "...Congress did not intend for the IDEA to apply to system wide administrative decisions. Hawaii's furloughs affect all public schools and all students, disabled and non-disabled alike. An across the board reduction of school days such as the one here does not conflict with Congress's intent of protecting disabled children from being singled out." To rule otherwise would be "to give parents of disabled children veto power over a state's decisions regarding the management of its schools. The IDEA did not intent to strip administrative powers away from local school boards and give them to parents of individual children, and we do not read it as doing so."

The court also found that the four day week resulting from the furlough days did not result in a change in placement because the five day week had been reduced to a four day week. The court disagreed that the IEP assumed a five day week across the board, noting that state and federal holidays resulted in some four day weeks and the furlough days were no different.

Last, the court acknowledged that the parents could, in some cases, bring a Baker School District-type claim for material failure to implement the IEP, but this type of claim did not trigger the "stay put" provision in the IDEA.

The implications: Finally. Schools in Oregon and I'm sure elsewhere have struggled with this issue, not just with regard to furlough days or shortened school calendars, but also with school strikes, weather-related closures, and other district-wide or school-wide closures. What this means is that school districts do not need to provide continuing services to students with disabilities when the whole district is closed. However, there may be a need, on a case-by-case basis, to consider whether the closure results in a "material failure to implement the IEP" that would require compensatory education services. In some cases, school districts may want to provide some interim services to mitigate potential claims at the back end. But the Court suggests here that they are not compelled to do so. And the occasional Friday Furlough is not likely to meet the "material failure to implement" test.

March 2010 - Predetermination

H.B. v. Las Virgenes Unified School District, 52 IDELR 163 (CD Cal, 2008)(on remand), affirmed, 110 LRP 15671 (9th Cir, March 11, 2010)(unpublished).

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The story: It appears that the school district entered into a settlement agreement with the family that placed the student at a private school for a period of time with the intent of bringing him back to a public placement in the district. At the IEP/placement meeting held at the end of that time period, district staff assumed that the student would be returning to the district under the terms of the settlement agreement. Although the parents wanted the student to stay at the private school, that option was not discussed at the meeting. The district representative at the meeting began the discussion about placement by stating the need to talk about a transition from the private school to a public program.

The court found the district had "predetermined" the student's placement because it found no evidence that the team discussed "the comparative strengths and weaknesses" of the private program and the public program and did not discuss whether the private program would be capable of implementing the student's IEP. The court found that the district's determination of a public placement did not evidence "the sort of open-mindedness that is necessary to comply with the IDEA" because the district was fully aware of the parents' wishes and did not address them in any meaningful way.

The court did not find fault with the IEP itself or that the proposed placement was inappropriate, but only with the procedure defect that did not allow for meaningful parent participation. The court did not address the impact of the settlement agreement.

Implications for schools:

It is incredibly difficult to walk the fine line between "offering a proposal" and "predetermining placement", particularly in contentious situations where "meaningful participation" by anyone is difficult and consensus most likely impossible.

The court suggests that it would not have found a procedural violation if the team had clearly discussed and documented the pros and cons of both placement options and only discussed the need for a "transition plan" after determining that the placement would be changed.

This case also reinforces the practice of considering not only the placement proposed by the district, but also any placements supported by the parents, even if the parent requested placements are more restrictive than the district's proposed placement.

Given that the court had no problem with the IEP itself, this case reinforces the Rowley position that the procedures can be every bit as important as the actual services provided. A good reminder, if a difficult one to implement.

January/February 2010

Drobnicki v. Poway Unified School District, 109 LRP 73255 (9th Cir., November 17, 2009 (unpublished)

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The story: Of course, there are always two sides to every story. The student here, Daniel, was found eligible for special education in middle school due to a diagnosis of ADD/ADHD. At the beginning of his sophomore year in high school, the parent met with the special education case manager to review a draft IEP. A general education ceramics teacher was present for a short time during this meeting, and no decisions were made.

The district sent the parent a notice of a second IEP meeting a few weeks later. The parent emailed the special education case manager the next day to say she was "not sure" they could attend because of a scheduled due process hearing (unrelated to the current IEP). In fact, the due process hearing was not scheduled on the day of the proposed meeting, but was scheduled on the days before and after the proposed meeting. Just before the IEP meeting, the IEP case manager phoned the parent and learned the parent would not be attending. While on the phone, the parent sent the IEP case manager an email saying that she had just returned from outpatient surgery and could not come to the meeting. Staff phoned the parent again and offered that she participate by speaker phone. The parent declined - she stated she thought is was inappropriate to hold the IEP meeting in the middle of the due process hearing.

The district proceeded with the IEP meeting without the parent, and forwarded a copy of the completed IEP to the parents. The parents objected to the IEP and the district filed a due process hearing to show that the IEP offered FAPE to the student. The ALJ found the IEP provided FAPE and found no procedural violation related to holding the meeting without the parent. The US District Court agreed, finding that the district took sufficient steps to ensure that one or both parents had the opportunity to participate in the IEP meeting - the father was available, having cleared his calendar for the hearing, and the mother chose not to participate by speaker phone. And, the court said, even if it was a procedural error, it did not result in a loss of educational opportunity or seriously infringe on the parents' opportunity to participate because the district held another IEP meeting about six weeks later with the parents to address the parents' concerns.

The 9th Circuit disagreed, finding that the district violated it's "affirmative duty" to schedule the IEP meeting at "mutually agreed on time and place." "Before it can hold an IEP meeting without a child's parents, the school district must document phone calls, correspondence, and visits to the parents demonstrating attempts to reach a mutually agreed upon time and place", citing Shapiro v. Paradise Valley Unified School District (9th Cir. 2003). The district did not contact the parents first to find an agreed upon date, and when the parent indicated that the proposed meeting date didn't look good, the district did not offer any alternative dates, and did not engage in any correspondence, phone calls or visits to establish a meeting date. Whether the parents had an actual conflict or not didn't matter, as a school district "cannot abdicate its affirmative duties under the IDEA." (citing N.B. v. Hellgate Elementary School (9th Cir., 2008).

Implications for schools:

-If possible, contact parents first before sending out a meeting notice.

- If not possible or feasible to contact parents first, confirm with the parents that the proposed meeting time is acceptable.

-Document all phone calls, emails, correspondence, and hallway conversations with the parents related to scheduling the IEP meeting.

-If the school does not have sufficient documentation of efforts to schedule a "mutually agreed on time and place", don't hold the IEP meeting without the parents.