Copyright 2009
Presented by Rodney C. Lewis
At the 2009 State Conference of the
Council of Alabama Special Educators
Orange Beach, Alabama
October 6, 2009
1. In re Montgomery County Bd. of Ed., 49 IDELR 119 (SEA AL). (Hearing Officer Wes Romine)
A parent filed a due-process complaint alleging several (Individuals with Disabilities Act) IDEA violations in connection with a district’s disciplinary removal of her child. The child was a learning-disabled student who had brought a gun to school. In the due-process complaint, the parent alleged an inappropriate manifestation determination review and inappropriate special education services while the child was in the disciplinary placement. The hearing officer ruled in favor of the parent.
The hearing officer found that the manifestation determination review had been procedurally flawed. He concluded that the meeting did not contain required individual education plan (IEP) team members and that the remaining members had failed to review the student’s current IEP and other relevant educational records. The hearing officer also found that the IEP developed for the student’s disciplinary placement failed to provide a free and appropriate public education (FAPE). He concluded that the offered program only provided general education homebound services.
2. E.H. v. Birmingham City Bd. of Ed., __IDELR __ (SEA AL). (Hearing Officer Wes Romine)
The parent filed a due-process complaint challenging the outcome of a manifestation determination decision involving her 12-year-old learning-disabled child. The parent also alleged that the child’s IEP failed to provide FAPE. The child had made threats against two of her teachers. As discipline for the threats, the principal recommended that the child’s placement be changed to an alternative disciplinary setting. A manifestation determination meeting was held and it was found that the conduct was not a result of the child’s disability. The child was making poor grades at the time of the incident. However, the teachers testified that the child had made some academic and behavioral progress before the filing of the complaint.
The hearing officer ruled in favor of the district on all issues. The manifestation determination decision was specifically upheld. The district was deemed to have followed all procedural requirements for a proper manifestation determination. The grades, behavior incidences, functional behavior assessment (FBA), behavior intervention plan (BIP), and other evaluations of the child were considered by an appropriately assembled IEP team. The hearing officer held that the manifestation determination decision of no causal connection between the child’s disability and misconduct was supported by the data reviewed by the team. The hearing officer further ruled that because the child had made some progress under the IEP, the “relatively low” Rowley standard for FAPE had been established.
Practical Strategies and Considerations
3. Colbert County Bd. of Ed. v. B.R.T., 51 IDELR 16 (N.D. Ala. 2008). (Hearing Officer Wes Romine)
This is an interesting case in which a federal court judge reversed a hearing officer’s initial ruling that a school district had denied FAPE to a student. The case originated when the district evaluated a student for initial eligibility and proposed to place the student in a self-contained program because of the student’s specialized needs. The parent refused to provide consent for special education services because she opposed the proposed placement. The district make several attempts to obtain parental consent and to mediate the matter. Yet the parent never provided initial consent for placement.
Several months later, the parent filed for due process alleging that the district’s proposed IEP, which designated a self-contained placement, was inappropriate. The district attempted to hold a resolution session, but the parent refused to attend. The parent advised the district that she did not wish to participate in mediation or a resolution session. At the due-process hearing, the district argued that the parent could not raise a failure-to-provide- FAPE argument because the parent never consented to initial services. The district also argued that the parent’s complaint should be dismissed because of the parent’s failure to participate in a resolution session.
The hearing officer ruled in favor of the parent on all issues. The officer ruled that the parent did not have to consent to services to raise a FAPE complaint and the hearing officer rejected the lack-of-resolution-session argument raised by the district. The hearing officer discussed the unfairness of requiring a parent to consent to initial special education placement in order to file a due-process complaint to challenge the appropriateness of such services. The district appealed to federal court.
The federal court overturned the hearing officer’s ruling. The federal court heavily relied upon that portion of IDEA 2004 which states that a district shall not be deemed to have failed to provide FAPE when a parent refuses to consent to the initial provision of services. 20 U.S.C. § 1414(a)(1)(D)(ii)(II). The court also ruled that the due-process hearing should have been initially dismissed because the parent had refused to participate in the required resolution session.
Following the federal court’s review in this matter, the United States Supreme Court issued the ruling in Forest Grove School District v. T.A., __ U.S. __, 129 S.Ct. 2484, 2009 WL 1738644 (2009). The case held that a parent’s refusal to consent to initial services does not preclude the parent from challenging such services in a due-process complaint. This overruled that portion of the federal court’s opinion that a parent could initiate a due-process complaint when he or she had refused initial special education services. However, the requirement that a parent participate in a resolution session was not changed.
Practical Strategies and Considerations
4. K.I. v. Montgomery County Bd. Of Ed., __IDELR __ (SEA AL). (Hearing Officer Wes Romine)
The parent filed a due-process complaint alleging a Child-Find violation. The evidence at hearing established that during the time of the alleged violation, the child’s scores on the Scholastic Aptitude Test (SAT), Alabama Reading and Math Test (ARMT), and Dynamic Indicators of Basic Early Literacy Skills (DIBELS) scores were average. Her grades were also average. The child had no disciplinary referrals. The child had exhibited some isolated acts of defiance at the beginning of the school year; however, this behavior was attributed to the child’s attending a new school. The child had been referred to building base student support team (BBSST) for this behavior. The evidence established that the child’s behavior had improved following BBSST interventions of a behavior intervention plan and school counseling. Upon receipt of the parent’s due-process complaint, the district held an IEP referral meeting in which the parent’s request for evaluation was denied. The parent declined to attend this meeting. The district provided the parent with written notice about its decision to not accept the referral and it referred the child back to BBSST with additional recommended interventions.
The hearing officer ruled in favor of the district. The hearing officer initially concluded that all procedural protections of the IDEA had been provided to the parent in regard to the referral and evaluation process that occurred following the filing of the due-process complaint. Because BBSST interventions were improving the child’s behavior, the district did not err in deciding to continue with those interventions instead of evaluating the child for eligibility under IDEA. According to the hearing officer, “there was substantial justification for the decision of the IEP team to reject the Petitioner’s referral for a special education evaluation. Neither her academic situation nor her conduct warranted a referral at that time.” The hearing officer additionally noted that “decisions that are made by professionals in situations where a parent has declined to provide his/her input should not be overturned absent compelling evidence that the IEP team has erred and in doing so created a situation that denies educational benefit to the child.”
Practical Strategies and Considerations
5. R.S. v Madison City, AL School System, 106 LRP 12373 (SEA AL). (Hearing Officer Wes Romine)
Parent sought funding from district to pay for his child to attend a private autism pre-school program which specialized in intensive applied behavior analysis (ABA) discrete trials. The district declined on the basis that it could provide appropriate services to the student in its pre-school program. In particular, the district offered a 25-hours-a- week program that contained an equal number of enrolled non-disabled peers. The district’s program included ABA discrete trials, incorporated other research-based methodologies, and provided speech language services and occupational therapy. At the hearing, the district established that its program was appropriate to address the student’s needs and that the program was staffed with trained teachers and aides. The system also argued that its program was the student’s least restrictive environment (LRE). Based upon the evidentiary showing by the district, the hearing officer dismissed the parent’s complaint. The district’s autism pre-school program was deemed appropriate despite parent demand for an intensive private ABA program.
Practical Strategies and Considerations
6. C.C. v. Huntsville City Schools, 106 LRP 6294 (SEA AL). (Hearing Officer Wes Romine)
Parent filed a due-process complaint challenging a district’s finding of her child as non-eligible for special education services. The student had a visual convergence diagnosis. This diagnosis reportedly resulted in the student’s reading fluency being below average. The student was a junior in high school enrolled in advanced placement classes. He had an above average IQ and he earned A’s and B’s in his academic classes. He had no behavior problems. The evidence established that his teachers had always provided classroom accommodations, such as extra time on tests, whenever requested by the student. The parent requested special education placement when the student did not score as high upon college entrance examination tests as the parent had desired. The parent alleged that the district had predetermined that her child (or any other child with high grades) would not qualify for services.
The hearing officer ruled for the district. The hearing officer concluded that the student did not need specialized instruction to access the general curriculum or to make passing grades. The student’s achievement was commensurate with his IQ. To the extent the student needed classroom accommodations, such accommodations were already being provided by the general education teachers. The hearing officer rejected the parent’s predetermination argument. He held that the district had always considered parent input and that the parent was always an active participant in the IEP eligibility process. There was a lack of evidence to establish that the other IEP team members firmly had their minds made up about eligibility before the evaluation process.
Practical Strategies and Considerations
7. D.J.M. v. Butler County Bd. of Ed., 109 LRP 30904 (SEA AL). (Hearing Officer Steven P. Morton)
A parent filed a due-process complaint alleging that the district failed to appropriately reevaluate her 8-year-old child and failed to properly conduct functional behavior assessments and develop a behavioral intervention plan. While in kindergarten, the child had been evaluated and found IDEA eligible under a speech language classification. The child’s behavioral incidences escalated. He would have “showdowns” with the teachers and became easily frustrated. The child was placed in different classrooms because of behavior. (He had thrown desks and furniture.) The parent subsequently advised the district that she was taking the child to a counselor on a weekly basis because of his behavior. The child was reevaluated in first grade. Behavior rating scales conducted by the teachers as part of the reevaluation indicated that the child’s behavior fell into to the “slightly problematic or problematic range.” The child was deemed ineligible for special education following this reevaluation. The district opined that the child’s behavior while concerning was not related to a disability. The parent obtained a private psychological evaluation which diagnosed the child with a behavioral disorder and recommended special education services. The district took no action upon receipt of this evaluation. The parent then filed a due-process complaint. The district then reevaluated the child and deemed him again eligible for special education services. An IEP was provided that specifically addressed his behavioral issues.
The hearing officer ruled that the district violated the IDEA for failing to reevaluate the child when the child first exhibited escalating inappropriate behavior and again when the parent provided the psychological report to the district. The district was found to have ignored evidence of behavioral issues with the child as well as to have disregarded the private evaluation by the parent that had specifically provided a psychological behavioral diagnosis. According to the hearing officer, both of these facts independently merited a reevaluation. The hearing officer was also critical of the fact that the district had summarily concluded that the student’s behavior was not disability related with no supporting evaluations or data establishing such a finding.
Practical Strategies and Considerations
8. N.R.B. v. Pickens County Bd. of Ed., 50 IDELR 235 (SEA AL). (Hearing Officer Wes Romine)
A parent filed a due-process complaint alleging that a district unilaterally changed his child’s IEP without consent. The parent had initially requested in an IEP meeting that the district use the “Scottish Rites” reading program for his 12-year-old child who suffered from dyslexia. Although the district was not familiar with the program, the IEP team consented to the parent’s request. The district subsequently learned that the Scottish Rites program actually had two distinct programs: a dyslexia program for students in second through fifth grade and a literacy program for high school students. The district decided to use the literacy Scottish Rites program. In his due-process complaint, the parent argued that he never intended for the district to use the literacy program and that the district in selecting the literacy program had unilaterally changed his child’s IEP without his consent. The parent sought compensatory services.
The evidence submitted by the district at hearing established that the special education director immediately obtained training in the Scottish Rites programs following the IEP meeting. When he learned of the two different programs available, he consulted with the director of the Scottish Rites program to determine which program to use. The district further established at the hearing that the child did make progress towards his IEP goals during the time that the Scottish Rites literacy program was used.
The hearing officer ruled in favor of the district. He concluded that the IEP team never agreed to use the specific dyslexia program and that in providing the alternate literacy program, the district was still in compliance with the language of the IEP. The hearing officer was also favorably influenced by the careful investigation and deliberation by the special education director in selecting the appropriate Scottish Rites program. The hearing officer wrote in his opinion that “the special education director followed the natural and appropriate course decision, supported by the recommendation of the person that the Parent himself had directed the Respondent to contact.” The hearing officer also held that even if the IEP had arguably been unilaterally changed, the change did not result in educational harm to the student. Thus, any arguable procedural error would not have been actionable by the parent.
Practical Strategies and Considerations
9. T.W. v. Sheffield City Bd. of Education, ___ IDELR _____ (SEA AL). (Hearing Officer Mike Cole)
T.W. was a profoundly disabled elementary school student primarily placed in a self-contained classroom. The classroom contained five to six other severely disabled students. The staffing of the child’s classroom included a teacher, aide, and nurse. The child was diagnosed with cerebral palsy and required suctioning several times a day. The child’s physician opined that the child’s suctioning needs were life threatening and that a delay in suctioning of even less than a minute could result in death or serious bodily injury.
The parent argued that the child needed a one-on-one full-time classroom aide. She expressed concerns that the classroom staff may not timely respond to the needs of the child if they were distracted by other students. In support of her position, the parent obtained a letter from the child’s treating pulmonologist stating that the child needed a personal aide for safety reasons.
The special education director contacted the child’s physician that had initially recommended the personal aide. The director explained the staffing already present in the classroom. The physician responded that such staffing was inappropriate because no one was responsible for the child’s minute-to-minute health-care needs in the classroom. The district then developed an IEP which provided that the child’s health-care needs would be supervised at all times during the school day by the development of a classroom schedule as to who would have primary supervision responsibilities for the child during the school day.
Once this IEP had been developed, the district again contacted the physician at issue and requested that he specifically review the staffing of the classroom in light of the coverage schedule proposed. The physician specifically approved the district’s schedule and he opined that as a result of the schedule, the child no longer required an one-on-one classroom aide. The parent then obtained a second opinion by another physician who believed that the child still needed a one- on-one aide because of safety issues.
The hearing officer ruled that a one-on-one classroom aide was not a necessary related service for this child. He further ruled that the coverage scheduled proposed by the district provided a safe environment for the child. The hearing officer strongly relied upon the final opinions of the child’s pulmonologist.
Practical Strategies and Considerations
10. In re Vestavia Hills City Board of Education, 51 IDELR 59 (SEA AL). (Hearing Officer Wes Romine)
The parent of a 6-year-old boy with a diagnosis of Asperger’s syndrome filed a due-process complaint challenging the district’s finding of non-eligibility. The parent raised several substantive arguments including challenges to the district’s evaluation process and eligibility decision. The parent also raised procedural challenges including improper IEP team membership and predetermination.
The hearing officer agreed with the district on most of the issues raised. He concluded that the evidence presented did not support a finding that the child was eligible for special education and that the student’s diagnosis did not adversely affect his educational performance. The hearing officer concluded that the student was already being successful at school and that he was not in need of specialized instruction. The hearing officer also rejected all of the parent’s challenges to the evaluation process at issue. Most of the parent’s predetermination arguments were also rejected based upon a finding that the parent had always been allowed to be an active participant in the IEP process and that the district had always considered her input.
The hearing officer did conclude that the district had erred by failing to ensure appropriate IEP team membership at the IEP eligibility meeting at issue. The evidence at hearing had established that the student’s speech therapist and resource teacher were unable to attend and that the student’s general education teacher missed part of the meeting. This procedural error was found to have resulted in the parent being denied her right to participate in the IEP process. The hearing officer noted that proper IEP team membership is necessary for a parent to be an equal partner in their child’s program.
Practical Strategies and Considerations
11. K.B. v. Madison City Bd. of Ed., 44 IDELR 174 (SEA AL). (Hearing Officer Steve Morton)
A school system initially failed to identify a student as autistic, but it did provide general education interventions addressing the student’s behavior. Subsequently, an IEP with behaviorally related services (under a speech language classification) was provided sufficient to allow the student to progress from grade to grade and to improve his behavior. The student later received a diagnosis of Asperger’s syndrome. The school changed the student’s classification, and it provided a revised IEP containing more specific autism-related services. The parent then filed a due-process complaint raising a Child-Find allegation. The parent sought compensatory education for the time the student was in general education, as well as for the time the student was in special education under a non-autism classification.
A ruling was returned in favor of the district. The hearing officer ruled that a school district does not violate its Child-Find obligations merely by failing to identify or diagnose a medical or psychological impairment. The hearing officer ruled that to establish a Child-Find violation based upon a system’s failure to identify a particular impairment, a parent must prove a school overlooked clear signs of the disability and was negligent in failing to appropriately evaluate the student. The hearing officer concluded that such evidence was not present. Child Find only requires having an evaluation that creates data sufficient to determine special education eligibility and to create an appropriate IEP. This opinion is important because it clarifies that there is no “strict liability” standard imposed upon a school district in fulfilling its Child-Find obligations under IDEA.
Practical Strategies and Considerations
12. In re M.M., 51 IDELR 86 (SEA AL). (Hearing Officer Steve Morton)
M.M. was a grade school student with limited cognitive abilities. The student was taught under a modified curriculum and he had an IQ in the low 50s. The student’s IEP provided for placement in some general education classes for socialization, but he received his academic instruction in a self-contained developmental program. This program was housed in a typical elementary school within the district.
The parent filed for due process alleging that the student’s least restrictive environment was full-day placement in the general education setting. The parent specifically wanted the student’s academic instruction to be in the general education setting. The parent argued that the accommodation of a classroom aide and individualized instruction would allow the student to progress in the general education setting. The district’s position was that because of the student’s low IQ and developmental delays, he would be even more restricted and isolated in a full-day general education setting. The district opined that the student would receive no academic benefit from being in a general education setting because the curriculum was far too advanced for the student. The district also felt that the student needed instruction in functional life skills from the self-contained developmental program.
The hearing officer ruled in favor of the district. The hearing officer concluded that the district’s effort to place the student with non-disabled peers during part of the school day satisfied the LRE mandate of the IDEA. The hearing officer concluded that to provide instruction to the student in the general education classroom would improperly result in the district creating a classroom within a classroom. Finally, the hearing officer ruled that the student needed life skills instruction that could only be appropriately provided in the self-contained classroom.
Practical Strategies and Considerations
13. Escambia County Board of Ed. v. Benton, 406 F. Supp. 2d. 1248 (S.D. Ala.). (Hearing Officer Wes Romine)
A federal court upheld a hearing officer’s ruling that a school district had violated the rights of an autistic student to a free and appropriate public education under the IDEA by not providing the student with a behavior assessment and behavior-related services. The court held that the student’s autistic condition did not relieve the school of responsibility to undertake appropriate behavior management techniques since it is possible to improve and mitigate behavior incidental to autism through appropriate behavior interventions.
The court also held that the district’s failure to provide notice to the parent as to mastery dates for IEP goals constituted an actionable IDEA violation. Despite the heightened pleading requirement provided by IDEA 2004, the court rejected the district’s argument that the parent had failed to properly raise many of the issues in the initial due-process complaint.
Practical Strategies and Considerations
14. In re Mobile County Bd. of Ed., 49 IDELR 299 (SEA AL) (Hearing Officer Wes Romine)
The parent filed a due-process complaint challenging the decision of the district to not transfer a diabetic special education student from his home school to a school closer to the parent’s place of employment. The parent wanted the student in a nearby school so that the parent could more easily address possible medical emergencies involving the student during the school day. However, the parent had denied the home school’s offer of additional nursing assistance for the student. The student did not qualify for a school transfer under the district’s general education policies.
The hearing officer dismissed the complaint. He concluded that the reason for the parent’s request for a different school was for the parent’s convenience. The hearing officer concluded that the student did not need a transfer because of any type of educational or medical issues because such issues could fully be addressed at his home school.
Practical Strategies and Considerations
15. Madison County (AL) School District, 52 IDELR 111 (OCR).
A high school senior injured her head during a cheerleading accident. The parent requested a Section 504 evaluation because of alleged learning problems stemming from the head injury. The parent attached medical information about the accident and its effect upon the child’s learning to the request for evaluation. The information provided by the parent was not forwarded to the Section 504 eligibility team. The parent was not allowed to attend the eligibility meeting. Following a review of the child’s grades and behavior, the Section 504 team deemed the child ineligible. The parent filed a complaint with the Office of Civil Rights (OCR).
The OCR found that the district’s failure to consider the medical information submitted by the parent and to allow the parent to participate in the eligibility meeting violated Section 504. 34 C.F.R. § 104.35(c) provides that in interpreting evaluation data and making placement decisions, a district must draw upon information from a variety of sources, ensure that all information is documented and carefully considered, and ensure that the placement decision is made by a group of persons knowledgeable about the student. By failing to consider the submitted medical information and refusing to allow the parent to attend the eligibility meeting, the district violated this regulation. The OCR also found that the district in error for failing to provide the parent with a copy of her procedural rights.
16. Talladega City (AL) School District, 109 LRP 3414 (OCR).
The parent of a mobility-impaired child filed a complaint with the Office of Civil Rights alleging disability discrimination by the district. The child had a form of muscular dystrophy and used a power wheelchair. The parent alleged that several areas of schools within the district (restrooms, parking lots, football stadium, doors, etc.) were inaccessible to mobility-impaired individuals.
The OCR ruled that the district’s facilities were not in compliance with Section 504 and the Americans with Disabilities Act (ADA) because the facilities were not readily accessible to mobility-impaired individuals. For facilities constructed before June 3, 1977, a school district must operate each service, program, or activity so that, when viewed as a whole, it is readily accessible to and usable by individuals with disabilities. This standard does not mean that a school district must make each of its existing facilities constructed before June 3, 1977, accessible if alternative methods are effective in providing overall access. If construction commenced or alterations were made on or after June 3, 1977, a building must be readily accessible to and usable by individuals with disabilities.
Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.
For more information about the Individuals With Disabilities Education Act (IDEA), contact Rod Lewis.
