SPECIAL EDUCATION & DISABILITY LAW
FAPE
DID THE DISTRICT DENY THE STUDENT FAPE PRIOR TO WITHDRAWAL FROM SPECIAL EDUCATION?
Case citation: Student v. Houston ISD, Dkt. No. 146-SE-0214 (Hearing Officer Lynn E. Rubinett, July 23, 2014).
Summary: The student attended school in the Houston Independent School District and was eligible for special education and related services as a student with an Other Health Impairment (OHI) based on Attention Deficit Hyperactivity Disorder (ADHD) and a Specific Learning Disability in the areas of Basic Reading, Reading Comprehension, and Dyslexia. During the 2012-2013 school year, the student filed a request for a due process hearing and the parties agreed to a stay-put placement that included an individualized education program from December of 2012. After the due process hearing, the hearing officer found a denial of a free appropriate public education (FAPE) during the 2012-2013 school year and ordered forty hours of compensatory reading services to be provided by the district. The hearing officer did not award the student a private reading program that had been requested by the parent.
In September of 2013, when the student’s Admission, Review and Dismissal (ARD) Committee met to implement the decision, disagreement arose over the parent’s request that the district provide the private reading program. The parent wanted the district to pay for the private reading program and halt all district reading services. The district declined to do so. The district agreed to provide more special education instruction in the resource setting and implement an IEP designed in May of 2013. The ARD Committee also agreed to continue with the December IEP goals and objectives pending discussion of the newly proposed IEP at the October 4, 2013 ARD. Counseling services were proposed, but the parent declined, stating that behaviors seemed to be acceptable at that point in the school year. The parent also declined additional compensatory educational services.
Prior to an ARD scheduled on October 4, 2013, the parent called to cancel it, but the district continued with the ARD without the parent in attendance because of the need to develop a schedule for the forty hours of compensatory education in order to comply with the previous due process decision. Based on the review of the student’s progress and needs, the ARD proposed revisions to student’s IEP, a counseling evaluation, increasing special education resource services to 120 minutes or two hours, and implementation of the student’s IEP at the student’s home campus. After two other ARD meetings ended in disagreement, on November 6, 2013, the parent withdrew consent for the student to receive special education services and later filed another request for a due process hearing. The parent claimed that the district denied the student a FAPE during the fall 2013-14 semester, and violated its child find duties for not identifying behavioral needs of the student.
Ruling: The hearing officer found no denial of FAPE and no violation of IDEA’s child find requirements. The parent alleged numerous procedural violations of IDEA pertaining to the content of student’s IEP and the implementation. The hearing officer observed, however, that procedural violations constitute a denial of a FAPE only if the procedural inadequacies impede the child’s right to a free appropriate public education (FAPE), significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefit. The parent’s argument focused on deficiencies in the IEP proposed at the September 2013 ARDC and later revised at the October 2013 ARDCs; however, the proposed IEP was not implemented. Rather, the December 2012 IEP was implemented initially, by agreement of the parties, and the May 2013 IEP was then subsequently implemented. At four ARDC meetings between September and November 2013, the district proposed a revised IEP with updated goals, present levels of performance, related services, and placement to address the student’s academic and behavioral needs; however, the parties did not reach agreement about the proposals, ultimately leading to the parent’s withdrawal of the student from special education entirely. According to the hearing officer, the district’s reliance on the December 2012 and May 2013 IEPs did not violate the procedural provisions of IDEA. The record showed that the IEPs were properly designed and implemented between August 26 and November 6, 2013, and that any confusion about which set of goals and objectives were applicable prior to October 4, 2013 had no impact on the provision of a FAPE to the student or on the parent’s opportunity to participate in decision making.
The hearing officer also concluded that the student’s IEP for the 2013-2014 school year addressed the student’s unique and individualized needs in all areas of disability. The student obtained some minimal academic benefit during the ten-week period in the fall of 2013 and the district timely acted to amend the student’s program to support greater gains going forward. The hearing officer ultimately concluded that the parent failed to prove a denial of a FAPE to the student between August 26 and November 6, 2013, when the parent revoked consent for special education services.
The hearing officer next considered whether the district failed in its child find obligations related to the student’s behavioral issues. The hearing officer observed that a district’s child find obligation would be triggered when it had reason to suspect that the student had new or different needs than had been previously identified at the time when consent was revoked for special education services. In this case, the parent argued that following the revocation of the student’s special education services, the student exhibited an increase in the amount and intensity of maladaptive behaviors, along with new behaviors in seemingly new circumstances. The hearing officer disagreed. The record showed that, before revocation of consent for special education services, the student was identified with both academic and behavioral/emotional needs. The student had an extensive behavioral support plan and had been repeatedly offered counseling to help manage frustration and inappropriate reactions to peers and adults. The behaviors displayed by the student after November 6, while perhaps initially more intense and frequent, were substantially similar to behaviors documented over a several year period. In fact, the student’s past record supported the predictable result that behavioral problems would escalate when academic and behavioral supports were withdrawn. After the parent withdrew consent for special education services, behaviors emerged that were precisely the reason for the special education services in the first place. The student did not exhibit new or different needs that should have triggered a child find duty. The district was required to, and did, stop all special education services when the parent withdrew consent. The parent failed to establish any facts that would trigger the district’s child find duty following the parent’s revocation of consent for special education on November 6, 2013.
Comments: It’s not clear what the parent wanted. Parent revoked consent for special education services. Student subsequently, and predictably, has difficulty in school. Parent accuses school of failing in its “child find” duty. School offers to do a full evaluation, but parent does not give consent. Parent does not want an evaluation or special education services, but claims that the district dropped the ball on child find. Confused? Me too.
THE PARENT DID NOT ESTABLISH A DENIAL OF FAPE
Case citation: Student v. Carrollton-Farmers Branch ISD, Dkt. No. 141-SE-0214 (Hearing Officer Sharon M. Ramage, June 20, 2014).
Summary: The student attended school in the Carrollton-Farmers Branch Independent School District and was eligible to receive special education and related services as a student with an Intellectual Disability. According to the student’s teacher, the diagnostician, and the most recent evaluation, the student functioned academically at a very low range with slow, laborious learning patterns. Soon after the beginning of the 2013-2014 school year, the parent expressed concerns regarding new at-home and school behaviors, transportation, and the possible need for occupational therapy. On September 4, 2013, the ARD Committee convened to address the parent’s concerns and to conduct a Review of Existing Evaluation Data (REED) in connection with the student’s three-year reevaluation. The ARD Committee requested updated evaluations, including achievement testing, vision and hearing screening, a Functional Behavioral Assessment (FBA) to address new behaviors reported by both the teacher and the parent, and a Functional Vocational Assessment. After the district completed the student’s three-year reevaluation, it convened another ARD Committee meeting on October 1, 2013. During this ARD Committee meeting, the parent raised concerns that the student should receive speech services. The ARD Committee responded to the parent’s concerns by requesting a formal speech assessment.
The ARD Committee reconvened on October 15, 2013. The parent refused to attend and notified the district of her refusal. The ARD Committee adopted the IEP discussed at the October 1, 2013, ARD meeting and decided to reconvene at the end of the school year to consider the student’s eligibility for Extended School Year (ESY) services. The district requested consent from the parent to conduct a formal speech and language assessment, but the parent refused. The district also provided the parent information necessary to obtain an Independent Educational Evaluation (IEE) at her own expense and informed her that it would convene an ARD Committee meeting to consider the results of such IEE. The ARD Committee convened on April 22, 2014, to discuss the student’s eligibility for ESY services. Although the district made numerous efforts to communicate with the parent regarding the meeting, she did not respond to multiple notices or appear. The ARD Committee determined that the student was not eligible for ESY.
At all relevant times, the student’s placement was in a special education classroom. The student’s most recent evaluation recommended placement in this setting, as well as instruction in academics at the student’s current level of functioning, and a life skills curriculum. The parent requested a due process hearing in February of 2014, claiming that the district failed to (1) identify the student eligible for special education due to a speech impairment, (2) provide occupational therapy and ESY services, (3) include the parent as a meaningful participant in the ARD process, (4) a placement in the least restrictive environment, and (5) provide other related services. The parent requested an independent educational evaluation at district expense, among other things. The district filed a counter claim to defend its evaluations.
Ruling: The hearing officer ruled in favor of the district on each of the parent’s claims. It was undisputed that the student made progress under the district’s program. The student’s teacher testified that the student made progress on the student’s IEP and demonstrated improvement in behavior. The student’s IEP progress reports reflected progress and/or mastery of goals. The student’s STAAR Alternate Documentation also reflected progress towards student’s academic goals.
The record also demonstrated that the district made numerous efforts to work collaboratively with the parent. The district responded to the parent’s concerns regarding behavior by requesting an FBA. When the parent raised concerns regarding speech, the district agreed to conduct a formal speech assessment. In addition, the student’s teacher collaborated with the parent in obtaining data regarding the student’s vocational skills and transition plan. The district did not deny the parent the opportunity to meaningfully participate in the development of the student’s educational program.
According to the hearing officer, the parent failed to produce any evidence that the student’s IEP was not appropriate, that the student’s BIP was not appropriate, that the student required OT or speech services to benefit from student’s special education, or that the district failed to provide appropriate transition services. There also was no evidence to support the parent’s contention that the district failed to appropriately train staff or that the student’s placement in the special education classroom was not the least restrictive environment for the student. Evidence was also lacking on whether the student required ESY services to benefit from the student’s educational program.
The record showed that the student’s program was individualized based on the student’s assessment and performance. The ARD Committee reviewed the student’s performance and other data to determine which additional assessments were required in connection with the student’s three-year reevaluation. Because of behavioral concerns, the district administered an FBA which formed the basis of a behavior intervention plan and behavioral support services which the student clearly benefited from as evidenced by the student’s progress. The ARD Committee reviewed the student’s current competencies prior to developing IEP goals and objectives that addressed the student’s academic and non-academic needs. Furthermore, it was undisputed that the student made academic and behavioral progress.
The hearing officer ruled in favor of the district on its counterclaim and concluded that the student’s full and individual evaluation (FIE) was appropriate. The record showed that the district conducted a Review of Existing Evaluation Data (REED) prior to determining which additional assessments were warranted as part of the three-year reevaluation. The ARD Committee discussed all possible areas of evaluation and determined that additional assessment data was needed in the following areas: vision and hearing, an FBA, academic achievement, and a vocational assessment. However, the ARD Committee determined that further intellectual testing was not warranted. In conducting the three-year reevaluation, the district used a variety of assessment tools and strategies, as well as information from the parent to gather relevant functional, developmental and academic information regarding the student and to assist in the development of the student’s educational program. There was no dispute that the assessments were administered in a non-discriminatory manner, in the student’s native language, by trained and knowledgeable personnel, in accordance with the instructions provided by the producer of the assessments, and were tailored to assess specific areas of need. The district’s REED and reevaluation process were appropriate, according to the hearing officer.
Finally, the hearing officer concluded that the parent failed to present any evidence with regard to the appropriateness of the student’s transition services, adequacy of staff training, and the need for counseling, tutoring, a mentor, additional social skills training, recreational therapy, speech therapy, occupational therapy, and assistive technology. Thus, the hearing officer denied all relief requested by the parent.
THERE WAS NO DENIAL OF FAPE WHEN THE STUDENT LEFT CAMPUS WITHOUT AUTHORIZATION
Case citation: Student v. Houston ISD, Dkt. No. 129-SE-0114 (Hearing Officer Sharon M. Ramage, May 23, 2014).
Summary: The student lived within the boundaries of the Houston Independent School District and received special education services based on an emotional disturbance due to Bi-Polar Disorder. The student’s placement included plans that recommended structured environments and monitoring due to impulsivity and elopement. The student’s ARD Committee determined the student’s placement in a behavior support classroom was the least restrictive environment. The IEP also contained a provision for Personal Care Services, including assistance during transitions, as well as upon bus arrival and bus departure. Leaving the assigned area was a challenging behavior for the student. As a result, the student’s placement was in the Behavior Support Class, a self-contained classroom, for all core classes, with participation in other electives in the general education setting.
On one day in 2013, the student left school without authorization. Toward the end of student’s last class period, the student asked to be excused to the bathroom and never returned. When the student’s aide arrived at approximately 3:00, the student had already left the campus. District personnel contacted the student’s parents to notify them that the student was missing. The police and family members discovered the student the following day.
The parents refused to return the student to campus for the remainder of the school year. Instead, the parents requested homebound services. The student’s psychiatrist recommended 1:1 supervision if the student returned to the campus or homebound instruction. The student’s ARD Committee later convened and developed an IEP to provide homebound services. The student progressed academically and successfully completed the school year. The parents then withdrew the student from the district prior to the beginning of the 2013-2014 school year.
The student filed a request for a due process hearing in January of 2014, claiming that the district failed to (1) implement the student’s IEP, including student’s transportation plan; (2) provide an appropriate IEP that provided academic and non-academic benefit and that addressed the student’s need for safety; (3) provide a FAPE in the least restrictive environment; and (4) allow the parents meaningful participation in the development of the student’s IEP by not allowing them to view surveillance video.
Ruling: The hearing officer ruled in favor of the district on each of the issues raised in the due process hearing. In this case, the parent did not challenge the appropriateness of the IEP in existence on the day the student left the campus without authorization. Rather, the parent’s complaint was that the district failed to implement the IEP because it did not provide an escort from the student’s classroom to the bus at the end of the day. According to the hearing officer, there was no evidence that the district failed to implement significant portions of the student’s IEP. In fact, a preponderance of the credible evidence showed that the aide went to the student’s classroom to escort student to the bus in order to implement the IEP. Unfortunately, the student left the campus before the student could be escorted to the bus. The student’s IEP included a provision for the student to be assisted during transitions throughout the school day, as well as to and from the bus. The hearing officer concluded that the district did not fail to implement the student’s IEP. Further, to the extent failing to supervise the student as student left the classroom to go to the restroom was a failure to implement the IEP, it was de minimis. Additionally, a failure to implement the student’s IEP, if any, did not result in a loss of educational benefit or a denial of FAPE. The district continued to provide the student with an appropriate education after the incident and the parents refused to return the student to school. The district accommodated the parents and continued to provide assignments to the student at home until student became eligible for homebound services.
During this time, the district engaged in ongoing discussions with the parents to discuss options for the student’s return, including assignment to another campus. The record was clear that district personnel worked with the parents and the student to accommodate the student during this period of time by providing student with assignments and ultimately providing homebound instruction. The student made educational progress for the school year. Any delay in convening the ARD Committee meeting did not result in a loss of educational benefit to the child. The hearing officer denied all relief requested by the parent.
DID THE DISTRICT’S HANDLING OF STUDENT HARASSMENT DENY THE STUDENT FAPE?
Case citation: Student v. Spring Hill ISD, Dkt. No. 012-SE-0913 (Hearing Officer Ann Vevier Lockwood, July 10, 2014).
Summary: The student attended school in the Spring Hill Independent School District and qualified for special education and related services due to a speech impairment. The student had a history of being harassed by other students. The student had been diagnosed with an adjustment disorder with mixed anxiety and depressed mood. The student received counseling from a private therapist and was given direct counseling services by the district.
Although the district made efforts to address the parent’s complaints of harassment, incidents continued. The parent considered the district’s efforts insufficient and withdrew the student from the district. The parent also requested a due process hearing against the district. In addition to the allegations related to harassment, the parent also claimed that the district failed to provide the student with a meaningful transition plan and appropriate related services, such as counseling and social work services, during the 2012-2013 school year. The parent also claimed that the district did not provide prior written notice after ARD meetings.
Ruling: The hearing officer held that the district provided the student with FAPE. Although the student was bullied during the 2012-2013 school year, the school district took reasonable steps and was not deliberately indifferent in addressing the student’s needs. The bullying did not adversely affect the student’s access to or substantially restrict the student’s educational opportunity, according to the hearing officer. The student ultimately derived a meaningful educational benefit from the educational program and therefore the school district provided the student with a FAPE within the meaning of the IDEA.
The hearing officer also concluded that the parent did not demonstrate that the district failed to provide a meaningful transition plan as a component of the student’s IEP for the 2012-2013 school year. The district developed a transition plan supplement that was a component of the student’s IEP. That, combined with discussions of transition needs during the student’s ARD meetings, met IDEA requirements.
The hearing officer also rejected the parent’s contention that the district denied the student appropriate related services. The record showed that the school district provided counseling services during 2012-2013 school year designed to meet the student’s needs. The parent did not prove that the student needed social work services in order to receive a FAPE.
Finally, the hearing officer determined that the district provided the parent with the requisite Prior Written Notice in a reasonable amount of time following ARD meetings in January and May of 2013. Even if the school district made a procedural error in failing to meet all required elements for Prior Written Notice, the parent failed to demonstrate that the procedural error significantly impeded parental opportunity to participate in educational decision-making regarding a FAPE for the student. Having ruled in favor of the district on each of the parent’s claims, the hearing officer denied all relief requested by the parent.