August 2009

Case of the Month: Forest Grove School District v. T.A. (US Supreme Court, June 22, 2009)

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The story: Six years ago, when T.A. was a junior and recently diagnosed with ADHD, his parents placed him in a private residential therapeutic boarding school. After his enrollment there, his parents sought funding for the placement through the school district. T.A. had been evaluated for special education during his freshman year and the team, including the parent, concurred he was not eligible. After the unilateral placement and a new evaluation by the district, the team met again but did not reach consensus - the district concluded that he was not eligible because the student's ADHD did not have a significant adverse impact on his educational performance. The parents prevailed at a due process hearing, and the district prevailed on appeal in District Court. The Ninth Circuit sent the case back to the District Court to reconsider theequities (essentially, fairness), rejecting the argument that the IDEA barred the parents from reimbursement because T.A. had not previously received special education from the district. The US Supreme Court agreed with the Ninth Circuit. The District Court should issue a ruling on the matter in the next few months.

Lessons learned: This case is big because we are always eager to hear what the Supreme Court says about the IDEA. But the case is small because it only addresses one small part of the question. The Supreme Court did not answer the big question - whether the circumstances justified district reimbursement for the parent's unilateral private placement. That decision, to be made by the District Court on remand, will turn on the parent's conduct and the district's conduct leading up to the placement (and, possibly, after). Did the parents give the district ample notice of their intended placement? Did the district have an opportunity to address the student's needs before removal by the parents? Was the reason for the out-of-home placement truly educational? Did the District unduly delay responding to the student's educational needs?

Forest Grove, like every other "child find" case, is timely to think about at the beginning of the school year. Do your general education teachers, particularly at the high school level, know what red flags should prompt a referral for special education consideration? Do the counselors know? Is this on your back-to-school agenda?

• For a discussion on determining adverse impact, see the June 2009 case of the month.

• Read what another parent has to say about special education in the Forest Grove School District.

June 2009

Case of the Month: L.I. v. Maine School Administrative District, (1st Cir., 2007) - "adverse impact"

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First, this is a case from the First Circuit, which is not precedent in Oregon. But it is instructive for a state like Oregon that does not have a specific definition of "adverse impact" as some states apparently do. While not "new" - it was decided in March 2007 - I just read it again and it provides very detailed analysis of the eligibility framework under the IDEA.

The story: L.I. was a sixth grade student who excelled academically but experienced "sadness, anxiety, and difficulty with peer relationships". She attempted suicide with her prescription medication, was hospitalized, and her parents sought special education services for her. They had her evaluated by a private neuropsychologist who identified Asperger's syndrome and a depressive disorder. This and other evaluations identified limitations in adaptive skills, executive skills, poor pragmatic language abilities and poor social skills. The evaluators recommended social skills intervention and cognitive-behavioral therapy.

The district found that she was not eligible under the IDEA because although she apparently met the disability criteria for autism (not completely clear in the case), the disability did not have an adverse impact on her education. The court disagreed, stating that adverse impact on education was broader than just academics and "adverse impact" did not have a qualifier attached - such as substantial, significant or marked. So, just about any "adverse impact" (negative impact) would be enough. "[N]o impact, or a positive one, will not do." The team still had to find that the student needed "special education services". Here, the student needed social skills intervention which had an instructional component so was sufficient for the needing special education prong.

Lessons learned:

This case suggests that what we think of as a three prong requirement for eligibility (meets disability criteria, has adverse impact, and needs special education) is really a two prong - meets disability criteria and needs special education as a result. The "adverse impact" is really the connector between the other two. There must be a connection between the disability and the need for special education services. How much of an impact? Enough to require special education services. Courts seem to take a more pragmatic (rather than technical) view of this issue.

May 2009

Case of the Month: Shaeffer v. Weast, (4th Cir., January 29, 2009)
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This case sounds familiar because it has been litigated since Brian Shaeffer was in the 8th grade during the 1998-1999 school year. He has long since graduated high school, but the case lives on, most notably for a 2005 US Supreme Court decision affirming the ALJ's initial assignment of burden of proof to the parents. This most recent 4th Circuit decision affirms the ALJs decision on the merits - that the district's 8th grade IEP for Brian, developed ten years ago, provided FAPE.

The story: Brian attended private school through 7th grade, when his parents asked the district for a program to address his ADHD and other learning disabilities. The district evaluated him, found him eligible as a learning disabled student and developed an IEP with parent participation. The IEP included: reading and writing support in a resource room for 45 minutes per day; co-taught (regular ed and special ed teachers) classes for English, Science, and World Studies; speech-language therapy for 45 minutes per week; general education classes for art, math, and PE; and accommodations across all classes (computer use, copies of lecture notes, preferential seating, etc.).

When the parents objected to the proposed placement at the neighborhood public middle school, the district offered an alternative location with an additional class in the learning center. The parents believed the student needed a placement with smaller classes due to an auditory processing problem and filed for a due process hearing, seeking tuition reimbursement and placement in a private school. The administrative law judge found the district offered FAPE.

Here, the 4th Circuit agreed, finding that the IEP the district and parent developed for 10th grade, calling for placement in a high school learning center, did not prove the earlier placement was inappropriate. Determination of FAPE is based on looking forward, not looking back. Further, the parents' experts were not as credible as district staff at the hearing. Neither expert had observed or was familiar with the co-teaching model used at the middle school, and one expert had only met with the student for ten minutes. In the end, the primary flaw with the parents' argument was that they "sought more than the IDEA requires". The parents' experts were seeking small classes for the student to "maximize his potential" rather than to provide him educational benefit under Rowley.

Lessons learned: This case shows just how "broken" the special education litigation model is. Ten years is way too long to answer a question as simple as "did the 8th grade IEP provide FAPE?" This case screams for alternative dispute resolution. But alternative dispute resolution takes reasonable parties with reasonable expectations and a willingness to be child focused in an era of extremely limited public dollars. Are there creative solutions to these types of problems? Absolutely! Are we willing to try? I can only hope the answer is yes.

April 2009

Case of the Month: Salem-Keizer School District, DP 08-120 (ODE, December 23, 2008) - high school math

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In 2008, there were 28 due process hearings filed in Oregon. All but five were settled or withdrawn for other reasons. This case is one of the five that went to hearing. Like most cases that go to hearing, it turns on what is "FAPE". Here, the question is whether a high school student with autism and a specific learning disability in math needed "exclusive one-on-one tutoring" in math for FAPE.

As a junior, the student took Algebra I and, predictably, had difficulty. In November, the parents filed a due process hearing seeking "exclusive one-on-one tutoring" for math. The district and parents settled, with the district providing one-on-one services for several months in the spring and for ESY in the summer.

Although the student had fulfilled his math requirement for graduation (he passed Algebra I with a "D"), he wanted to take another year of math to increase his chances of getting accepted to college. Again the parents filed a due process hearing to seek continuation of the one-on-one math tutoring.

This time the case did not settle and the ALJ agreed with the district that placement in the LRC academic support class was reasonably calculated to provide educational benefits to the student, and one-on-one tutoring was not necessary.

Here are some of the factors that influenced the outcome of this case:

• The ALJ found the parent had limited credibility as a witness because the parent was "uncooperative and evasive during the hearing" and withheld documentation. The student's credibility was affected by poor memory and s/he was "overly influenced by Parent, who had a strong bias against District."
• The district's autism specialist gave expert testimony that the student could learn in the academic support class, and would benefit from peer involvement in that setting, which was less restrictive than one-on-one tutoring.
• The district offered to make one-on-one tutoring available in a separate space when needed in specific situations.
• The student's voluntary participation in band and other classes with background noise detracted from the premise that the student could not learn with other students in the LRC.
• Given the student's age and limited time left in public education, providing math instruction in the LRC would be more likely to prepare the student for future learning and living environments.
• The IDEA does not guarantee a placement that parents and students prefer. (Here, the student did not like for other students to know that he needed help in math.)
• An increase in math scores alone was not persuasive evidence that "exclusive one-on-one tutoring" in math was necessary for APE.
• Although staff held "pre-meetings" before some of the IEP meetings for the students, these pre-meetings were used to develop proposals and did not constitute "predetermination" of IEP or placement.

Lessons learned: On the surface, it is surprising this case went to hearing, but sometimes districts just feel enough is enough. The ALJ confirmed that what the district was offering was not only reasonable but also consistent with IDEA. Hopefully this lesson will not be lost on other families contemplating legal action.

March 2009

Case of the Month: T.P. and S.P. v. Mamaroneck School District (2nd Circuit)
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This Second Circuit case from New York addresses the recurrent theme of "predetermination".

Here's the story: In preschool, the district provides this child with autism a regular preschool program for ten hours per week with an adult assistant, 30 hours of ABA services at home, and speech and occupational therapy. Now the child is transitioning to kindergarten. The parents want to continue home-based ABA services (25 hours per week) along with a full-time adult assistant at school and private OT and speech five times per week.

Not surprisingly, the June IEP team does not agree and the parents bring in an outside expert who supports their position. In July, the IEP team meets again to consider the expert's report and recommendations and modifies the IEP to include 10 hours of school-based ABA and various transition services during the summer. Just before the July IEP meeting, the district's behavior consultant reviews the expert's report and makes recommendations for services. The ultimate IEP reflects the behavior consultant's recommendations.

Parents request a hearing, and the district prevails through the two-tier hearing process. The federal district court rules for the parents, but the 2nd Circuit disagreed, supporting the hearing officer/ALJ decisions. In sum, the 2nd Circuit found the district did not "predetermine" placement by developing proposals in advance of the meeting. The district's actions at the meeting reflected a responsive posture, where the district made changes to the June IEP to add ABA services (at school) and transition services over the summer. The staff did not have a "take it or leave it" attitude, and the parents had a meaningful opportunity to participate in the decision-making process.

Substantively, the court quoted from Rowley that school districts are not required to "furnish[] every special service necessary to maximize each handicapped child's potential". The court deferred to the well-reasoned findings of the hearing officer/ALJ that the IEP appropriately addressed the student's needs.

Lessons learned: The lessons here are pretty clear. Evidence of a good faith "give and take" over an IEPs contents suggests an open mind even if the results are not what the parents want for the child. Parents and district personnel alike are allowed to prepare for IEP meetings. Such preparation will not be considered "predetermination" as long as the preparation sessions are not decision-making venues, and IEP participants approach IEP meetings with some level of flexibility.
When the team does not reach consensus, the school must offer a reasonable solution that addresses the student's educational needs.

February 2009

Case of the Month: Thompson R2-J School District v. Luke P. (10th Circuit)

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This 10th circuit case from Colorado tells a story that sounds familiar: At age 2, Luke is diagnosed with autism. In kindergarten through grade 2, he makes progress at school in many areas but his behavior problems at home are "especially severe." He is sometimes violent at home and in the community, has sleep problems and inappropriate toileting behavior. In the fall of Luke's third grade year, Luke's parents are unsuccessful in convincing the district that he needs residential placement due to lack of generalization of his skills from school to home. The parents give the district notice, unilaterally place him at the Boston Higashi School (remember Ash?), and request a due process hearing.

The parents prevail through both levels of Colorado's two tier hearing system (five day hearing and review process) and federal district court. The state level ALJ noted that Luke had achieved nearly a quarter of the goals and objectives on his IEP, "was making slow [but] steady progress toward others" and overall was advancing on his goals at school, but was unable to transfer his learned skills and use them outside of school. It was this "generalization deficiency" that warranted residential placement.

The 10th Circuit disagreed, stating: "Though one can well argue that generalization is a critical skill for self-sufficiency and independence, we cannot agree with appellees that IDEA always attaches essential importance to it." In other words, when a child's skills in the school setting do not generalize to the home, "other resources [not IDEA] must be looked to." (The court distinguishes Ash v. Lake Oswego SD, a 1991 case from Oregon requiring reimbursement for residential placement at the Higashi School, because in that case the student's "generalization deficiencies or regression tendencies were so severe that they essentially prohibited any learning or progress on the student's IEP goals.") (emphasis added)

In sum, "a school district is not required to provide every service that would benefit a student if it has found a formula that can reasonably be expected to generate some progress on that student's IEP goals."

The parents filed for U.S. Supreme Court review on December 19, 2008.

Lessons learned:

* The opinion notes that the school district officials "expressed openness to revising Luke's IEP to include the parents' proposed goals" and to working with the parents' private expert to improve their special education program. The opinion also notes the ALJ's finding that the district made a "monumental and genuine effort" to improve Luke's performance in a number of areas affected by his autism. The district did not abandon its efforts to assist Luke in generalizing skills in the face of the parents' request for residential placement. The opinion implies that the district carefully monitored and reported on the student's progress. We can all learn from this district's experience.

November 2008

Case of the Month: M.M. v. Special School District No. 1, (8th Circuit, January 4, 2008, cert. denied October 20, 2008).

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This convoluted case from the 8th Circuit (not precedent in Oregon), better known for its burden of proof holding, addresses interesting discipline and placement issues. The US Supreme Court just declined to review it.

The student, identified as emotional disturbed with academic and speech-language needs, was in seventh and eighth grade during the relevant time period. In seventh grade she was suspended from School A for fighting with another student and attacking a staff person who attempted to intervene. After a ten day suspension, the district moved her to School B without conducting an IEP meeting. The student completed the school year at School B, made academic progress, but made "insufficient" progress on her behavioral goals. At the beginning of eighth grade, the parent enrolled the student in an out of district charter school, but after one month returned her to School B.

The 8th Circuit found that the parent could not now raise objections to the "failure to review the IEP" before moving the student because the parents did not not request any changes to the IEP, did not protest the transfer, and did not request a due process hearing. The district did not deny FAPE because the student did not make progress on her behavioral goals: "When a child's primary disability is a behavior disorder, the school district does not violate IDEA simply because the child failed to achieve the IEP's behavioral goals."

After the student returned to School B, the district then held an IEP meeting and increased her time in special education settings to work on academic and behavioral goals. She was suspended several times that fall, resulting in IEP team meetings, an increase in time in special education settings and a new functional behavior assessment and behavior intervention plan. The student continued to make progress on her academic and speech-language goals, and continued to work on her behavior goals.

In January of eighth grade, the student was suspended for five days for attaching a vulnerable student. The IEP team, including the parent, agreed that School B was no longer appropriate and the district proposed moving the student to a special class for at least 60% of the school day at School C. The parent objected to the proposal because there were too many boys in this class. The 8th Circuit, disagreeing with the ALJ and the district court, found the district's proposal appropriate because the student's previous aggressive behavior all involved altercations with girls and there were no immediate openings in the classroom with more girls.

The district and parent agreed to try mediation. In the meantime, the student returned to School B, where she was suspended several more times. The district again proposed the move to the class as School C. The parent again refused.

In mediation, the parties agreed to a less restrictive placement at School D, where the student was almost immediately suspended. Again disagreeing with the lower court, the 8th Circuit found the district did not violate the IDEA by agreeing to try this less restrictive placement. After the suspension, the student returned to school D, where she did well for the rest of the school year. At that point the parent requested a due process hearing. At the hearing, the parent argued that the district should have offered an out of district placement. The ALJ and reviewing courts all rejected this argument, finding that the ED classroom was appropriate. However, the 8th circuit also found no basis for the lower court's award of compensatory education services, finding the parent rejected the district's offer of home instruction during suspensions.

Lessons Learned:

1. The IDEA discipline rules are as convoluted as the facts in this case. Often tensions are high, timelines are short, and options are limited. It's a good time to seek legal advice.

2. Although the district ultimately prevailed, it could have avoided one of the claims in this case by holding an IEP meeting before transferring the student to School B. The purpose of such a review would be to look at the behavioral goals and services and review the behavior plan to determine whether the goals, services and interventions are still appropriate in light of this new behavior or whether changes need to be made. The team might have decided that a lateral transfer (or change in location) was not sufficient and the student needed a more restrictive "change in placement" at that time.

3. The court would not likely have been as sympathetic to the district's position if the student had not been making progress on her academic and speech-language goals. Schools must address lack of progress and not wait until the annual IEP meeting. Here, the district impressed the court by its continuous efforts to address the student's behavioral needs by making changes to the student's program, proposing alternative placements, etc.

4. The district was able to demonstrate that it offered services to the student at home during further suspensions after the first ten school days of suspension. Although the parent refused these services, the court found that compensatory education services were not warranted. Just a reminder -- students who are suspended for more than ten school days in a school year, services must be provided services - both general education and special education.

a. For suspensions of more than ten days that are not a "pattern" - school personnel decide (in consultation with the child's teacher) on the amount and location for the services to be provided. OAR 581-015-2410(2).

b. For suspensions of more than ten days that are a "pattern" and the behavior is not a manifestation of the student's disability - the IEP team decides where the services will be provided. OAR 581-015-2415(5) and 581-015-2435.

c. For suspensions of more than ten days that are a "pattern" and the behavior IS a manifestation of the student's disability - the student must be returned to the placement from which the student was suspended unless the behavior is one of the "special circumstances" (drugs, weapons, serious bodily injury) that would justify a removal to an interim alternative educational setting, which must be determined by the IEP team. OAR 581-015-2415(4). [The student may also be moved to another setting if the parent and district agree, if the district gets an ALJ or court order for removal, or if the IEP/placement team decides on a change in placement.]