Further Reflections on the Sandy Hook Elementary School Massacre

Two days have passed since I first posted my thoughts about the Sandy Hook Elementary School massacre.  I am becoming increasingly concerned that the news media and others investigating this disaster have not indicated that they will investigate whether there may be a connection between the manner in which the Newtown School District addressed Adam Lanza's special needs arising out of ASD and comorbid disorders, and the 20 year-old former student's horrific acts.

 

While official investigators do not appear to be acknowledging that this may be an elephant in the room, many parents, like Liza Long ("I am Adam Lanza's Mother"), are not only aware of it, but are on the verge of being crushed by it.  Even in the small state of Iowa, since Sunday, even I have received several calls from parents of children diagnosed with ASD and one or more co-morbid psychiatric disorder, who are expressing fears that their children may be demonstrating potential for violence.

Each of these parents began by saying that while they have been worried about their children's risk of suicide, since Sandy Hook, they have become worried that if someday their children were to have access to guns or explosives, they might strike back at the school system in which they have been miserable . . . failing . . . isolated . . . bullied . . . physically/emotionally uncomfortable . . . etc.  All of the parents indicated that they believe the inability of their public school districts to adequately understand and address their children's needs is driving increases in their children's levels of self injury, withdrawal and isolation, and verbal and physical aggression. 

In response to my questions, all of the parents indicated that their children are receiving private medical services and other outpatient treatment, and that some are covered by Iowa's Children's Mental Health Waiver, while others are on the waiting list for the waiver.  Despite their descriptions of some rather specatcular records of truancy, suspensions, physical and verbal aggression, property damage and academic failure, according to the parents, not one of their children's IEP teams have ever mentioned the possibility that in connection with the school's duty under state and federal law to provide a continuum of placements, the school might provide the child with placement in a school with intensive therapeutic services.

While it is unreasonable to consider children diagnosed ASD as potential mass murderers, those investigating the perfect storm that produced the Sandy Hook massacre cannot ignore the research has demonstrated that some individuals diagnosed with ASD and significant levels of co-morbid psychiatric and/or central nervous system disorders, are at risk for high levels of abberant behaviors. 

On the basis of all of the above, I would like to reiterate that while it may be difficult in the wake of the Sandy Hook disaster for investigators to probe the terribly wounded Newtown School District, no meaningful investigation into the factors that produced the massacre can avoid taking a good look at the manner in which, only a few short years ago, the Newton School District addressed Adam Lanza's special needs.

 

 

Reflections on the Sandy Hook Elementary School Massacre

During the past 48 hours of coverage of the Sandy Hook Elementary School massacre, several residents of Newtown, Connecticut have come forward to attest that the Newtown School District is a wonderful school district. Like many other public school districts, Newtown probably does provide a fine public education for many students. However, some of the "breaking news" indicates that this may not have been true in the case of its former student, Adam Lanza.

The developing facts of the school massacre are probably all too familiar to attorneys who, like me, represent parents of children with autism and other neurodevelopmental disabilities in special education matters.  About twice per year, in the course of representing parents in special education mediations, the facts compel me to tell the school district and area education agency involved, "This situation needs to change immediately – you’re incubating a school shooter."

Today I am thankful beyond words for the fact that on those occasions, the school districts involved have been represented by a prominent and insightful school attorney who is well-versed in both special education and special education law.  Each time she has recognized the risks involved, and has guided her clients to make the necessary changes.  As a result, while representing our clients zealously and with integrity, we have helped them solve problems before violence occurred or escalated. I should add here that I am thankful that many situations which hold potential for future violence are resolved through the work of insightful and highly skilled teachers. I count my own sister, who teaches in an out-of-state public school, among those bright stars.

There seems to be no doubt that Adam Lanza’s disabilities played a role in his violent acts. According to the networks, Tim Dalton, a neighbor and former classmate of Adam’s said, "Adam Lanza has been a weird kid since we were five years old." Adam’s paternal aunt, Marsha Lanza, explained that Adam had experienced school difficulties since middle school, and that his mother, Nancy, fought with the School District about his needs related to autism spectrum disorder until she gave up and pulled him out of high school in order to home school him.

While much of today’s media coverage seems to be focusing on the fact that Nancy Lanza apparently kept unsecured guns in her home, there’s more to this story than that lethal error of judgment. From my perspective, I am wondering what happened or didn’t happen in the course of Adam’s public school education that caused him to decide to massacre teachers and students in his home school district.  

While public figures are calling for "meaningful change" in order to prevent future school massacres, they seem to be limiting their discussion to issues involving access to guns and lack of access to mental health care.  I have heard no discussion of an investigation into how Adam’s experiences in the Newtown School District, which consumed nearly half of his waking hours, five days per week, 180 days per year, for more than ten years, may have laid a foundation for his violent retaliation against the school district on Friday.  Had the School District worked more effectively with Adam and his mother, might Friday's violence have been averted?

While it may be difficult for those who investigate the massacre to probe this terribly wounded school district in regard to its past conduct, any meaningful investigation into the factors that combined to produce this massacre cannot avoid considering that even in school districts located in nice communities, some school teachers and administrators can and do act in ways that contribute to the propensity of some children to harm themselves and others in terrible ways.

Office of Civil Rights Receives Record Number of Special Education Complaints

The United States Office for Civil Rights (OCR) at the U.S. Department of Education enforces civil rights laws that prohibit discrimination on the basis of race, national origin, sex, disability and age.  A new OCR report for the period 2009-2010 states that from 2009 to 2011, the agency received more complaints about disability issues than in any previous three-year period.  Of the nearly 11,700 complaints concerning disability issues, almost 4,700 involved the rights of children to receive a free and appropriate public education (FAPE).  The remaining 7,000 disability-related complaints concerned issues including school district violations of Child Find, denial of access to academic programs and extracurricular activities, access to assistive technology, denial of academic adjustments, and harassment and bullying.

The data used in the report covered 85% of U.S. public schools.  The data for 2011-2013 will include every public school in the nation.  Matters described in the OCR report include:

·         A school district that required parents to get medical documentation, at their own expense, supporting the existence of disabilities for their children. The district also required parents to show that their children were being discriminated against before it would conduct an evaluation for disabilities.

·         A charter school that failed to properly evaluate whether a 6th grade transfer student with a severe, potentially life-threatening peanut allergy to determine if she had a disability.

·         A school district that had not fully implemented an IEP for a child with a mood disorder.

·        Investigation of whether children who ride school buses specifically for children with disabilities receive less instructional time than children who do not have disabilities.

·         Data collected showing that students with disabilities are twice as likely to be suspended out of school in comparison to their peers without disabilities.

·         Cases involving the bullying and harassment of students with disabilities.

·         School denial of access to academic programs and extracurricular activities to students with disabilities.

The entire report is available at:  http://www2.ed.gov/documents/news/section-504.pdf

How to Register Your Objection to an Inappropriate IEP

I wish I had thought of this great tip myself.  But since I didn't, I want to give credit to and heartily thank Pete and Pam Wright, adjunct professors of law at the William and Mary Law School, and their excellent Wrightslaw website, http://www.wrightslaw.com/advoc/articles/strategy.disagree.htm#rules for the following tip on how a parent may register his or her objection to the IEP Team's decision to implement what s/he believes is an inappropriate IEP.  Although in Iowa and some other states, parents are not asked to sign the IEP, when provided with a copy of the finalized IEP that will be implemented, a parent may still take the following action:

"When the team asks you to sign consent to the IEP, pick up a ball point pen and put the IEP on a hard table top. Write this statement on the IEP:

I consent to this IEP being implemented but I object to it for the reasons stated during the meeting.
(Sign Your Name)

Do not be surprised if someone gets upset and claims that you are not allowed to write on the IEP because it is a legal document. This is not true - you can write on your child's IEP (although the person who objects may not know this). You are a member of the team and a participant in the IEP process. The law requires you to make your objections clear. The IEP is the best document to use when you need to make your objections clear.

If someone tries to stop you, continue to write. If someone tries to pull the IEP out of your hands, press down hard with your ballpoint pen and continue to write. If someone yanks the document away from you, continue to write as the IEP tears.

Stay calm. Take your copy of the IEP (whatever is left), stand, say 'Thank you. I guess this meeting is over.' Extend your hand to shake theirs. Pick up your tape recorder and leave.

The IEP team has a problem. You have advised them in writing that their proposed program is not appropriate for your child. You also consented to their implementing the program so they should implement it."

Special Education Time Frames Part 2

This is the second article about time frames under special education law.  While some federal and state special education regulations describe the timeframes in which a school district and area education agency must take certain actions.  While some of these regulations state a specific number of days, others indicate that actions should be taken in an unspecified but timely way.  In this post, I will begin setting out some of the time frames that apply to specific actions under the special education regulations contained in the Iowa Administrative Code.

Independent Educational Evaluation (IEE)                      See 281—41.502

An IEE is an evaluation conducted by a qualified examiner not employed by the AEA. After a school district/AEA have performed an evaluation, if the parents of a child with a disability disagree with the outcome of that evaluation, they have the right to obtain an independent educational evaluation (IEE) of the child at public expense, subject to the conditions set out in the Iowa Administrative Code. 

If a parent requests an IEE at public expense, the AEA must, without unnecessary delay, either:

(1) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(2) Ensure that an independent educational evaluation is provided at public expense, unless the AEA demonstrates in a hearing pursuant to these rules that the evaluation obtained by the parent did not meet agency criteria.

The school district and AEA may not unreasonably delay either providing the IEE at public expense or by delaying before filing a due process complaint to request a due process hearing to defend the public evaluation.

Determination of Eligibility for Special Education and/or Related Services  See 281– 41.306

Upon completion of the evaluation, a group of qualified professionals and the child’s parent shall determine whether the child is a child with a disability, as defined in accordance with subrule 41.306(3) and the educational needs of the child; and the school district/AEA shall provide a copy of the evaluation report and the documentation of determination of eligibility at no cost to the parent.

Initial Provision of Services          See 281--41.323(3)      See 281—41.103(3)

Within 30 days of the date the evaluation team determines that a child needs special education and related services, the school district and AEA must hold a meeting of the IEP team to develop an IEP for the child, and begin services.

There shall be no delay in implementing an eligible individual’s IEP, including any case in which the payment source for providing or paying for special education and related services to the child is being determined.

Special Education Time Frames Part 1

While some federal and state special education regulations describe the timeframes in which a school district and area education agency must take certain actions.  While some of these regs state a specific number of days, others indicate that actions should be taken in an unspecified but timely way.  In this post, I will begin setting out some of the time frames that apply to specific actions under the special education regulations contained in the Iowa Administrative Code. 

Child Find  -- See 281—41.111
School districts and AEAs are responsible to conduct activities on an ongoing basis to identify:
1. children who require SPED and
2. children who need general education interventions under subrule 281--41.48(2).

Full and Individual Initial Evaluation -- See 281--41.301, 281—41.302 and 281—41.312(4)
A parent, AEA or school district may request a full and individualized initial evaluation of a child at any time to determine whether or not a child is a child with a disability and identify the child's educational needs.  Even if the evaluation team has implemented general education interventions to address the child’s needs, the parent may still request a full and individual initial evaluation.
[A screening for instructional purposes is not evaluation to determine whether a child is a child with a disability. The screening of a student by a teacher or specialist to determine appropriate instructional strategies shall not be considered to be an evaluation for eligibility for special education and related services.]

Parental Consent for an Evaluation  -- See 281—41.300
The school district and AEA must obtain informed parental written consent before it may perform a full and individual initial evaluation. 

Parental Consent for Special Education-- See 281—41.300
The school district and AEA must obtain informed parental written consent before it may begin providing special education and related services

Refusal to Perform a Full and Individual Initial Evaluation -- See 281—41.503 
The school district and AEA must give written notice to the parents within a reasonable time before either agency refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child, including notice that the parent  may file a request for a mediation or due process hearing.

Completion of a Full and Individual Initial Evaluation -- See 281—41.301  
Initial Evaluation Completion An evaluation must be completed within 60 days of the request for it.
The full initial evaluation must be conducted within 60 calendar days of receiving parental consent for the evaluation.

School Suspensions and Expulsions

Suspensions and Expulsions Generally

            In regard to students who are not receiving or eligible for special education services, the State of Iowa vests authority to expel a student from a public school in the school boards of each Iowa school districts.  Iowa Code § 282.4(1).  A school board may, by a majority vote, expel a student for a violation of the regulations or rules established by the board, or when the presence of the student is deemed to be detrimental to the best interests of the school.  The board may confer upon any teacher, principal, or superintendent the power temporarily to suspend a student, notice of the suspension being at once given in writing to the president of the board.

            Although students of mandatory school attendance age do not have a Constitutional right to a public education, in Goss v. Lopez, the U.S. Supreme Court held that state attendance laws provide them with a property right in receiving a public education.  On this basis, the Court ruled that a school district cannot expel a student without first providing “due process” to ensure the right isn’t taken away arbitrarily for more than ten days. 

            Under Iowa law, if a student breaks a school rule punishable by expulsion or a suspension of more than ten days, due process procedures are required, which culminate in a hearing before the school board.  In making its decision about whether to suspend the student for more than ten days, or to expel him or her for a year, the board is charged with considering “the best interests of the school district” and “what is best to protect and ensure the safety of the school employees and students from the student committing the assault.”

            When a student is alleged to have committed an action that is punishable by expulsion, due process under Goss requires that prior to the hearing, the school district must provide written notice by regular U.S. mail to the parents and student.  According to the School Administrators of Iowa, the notice should state the specific school rule that the student is accused of violating AND specifically state that expulsion is being considered or recommended.  The school district must schedule a an expulsion hearing before its school district board of directors, within ten days from the date the student was excluded from school.  

            The purpose of the written notice is to allow the student to prepare a meaningful defense.  When a school district fails to provide this notice, it violates the student’s due process rights. See In re Guthrie, 19 D.o.E. App. Dec. 306 (2001).  The School Administrators of Iowa recommend that if the school district plans to introduce evidence of the student’s past disciplinary history, this should be stated in the notice.  In addition, the notice should provide:

·         The date, time, and place of hearing

·         A recital of the rights of the parents and student

·         The names of witnesses who the school expects to give evidence and testimony

·         The parent and student’s right to counsel of his or her choice at their own expense

·         The right to cross-examine witnesses against the student

·         The right of the parent and student to produce witnesses to testify on the student’s behalf

·         The right of the parent and student to copies of documents supplied to board members

·         The right to a closed hearing unless an open hearing is specifically requested

            The student is entitled to a decision by an impartial decision maker. This notwithstanding, it is notable that Iowa law does not require a school board member who is biased in favor of or against the student, to recuse him or herself.  Nonetheless, if such a board member fails to do so, this issue may be raised on a later appeal by the student to the Iowa Department of Education. See generally, 281 IAC 6.1(290).

            At the hearing, after the student and school district have presented their witnesses and evidence, the school board goes into closed session to decide the case.  According to the School Administrators of Iowa closed sessions are always taped.  After the board has announced its decision at the hearing, the student and parents are entitled to receive written "findings of fact and conclusions of law."  See In re Shinn (14 D.o.E. App. Dec. 185 (1997)) which states that the due process rights of an expelled student include written findings and conclusions as to the charges and penalty.  The Findings of Fact section should summarize the testimony of those who testified about the guilt or innocence of the student.  The "Conclusions of Law" part of the written decision should set out the penalty the board has chosen.

            A parent who disagrees with the school board’s decision may appeal an expulsion decision to the Iowa Department of Education by filing a complaint requesting a due process hearing before an administrative law judge. 

Suspensions and Expulsions under the IDEA

            The above-described procedures apply to students who are not receiving special education services under the Individuals with Disabilities Education Act (IDEA). 20 USC § 1400 et seq.  Under the IDEA and its implementing regulations, a school district may suspend or move a student with a disability to an interim alternative educational setting for not more than 10 school days (consecutively or per school year) if under the circumstances a nondisabled student would be treated in the same manner for the same violation.

Change of Placement

            However, with respect to disciplinary removals of a student covered by the IDEA from the student’s current educational placement, a “change of placement” occurs if a student is removed for more than than ten consecutive school days; or the student has been subjected to a series of disciplinary removals totaling more than ten school days within a school year.  See 34 CFR 300.530 through 300.535.

Manifestation Determination

            If a student covered by the IDEA will be excluded from school for disciplinary reasons for over ten days (consecutively or within one school year), the IDEA requires the IEP team to make a decision within ten days of that exclusion to determine whether or not the offending behaviors were a "manifestation" of the student’s disability. 20 USC §1415(k)(4)(B),(C);  20 U.S.C. 1415(k)(1)(A) and (E).  This process, referred to as a “manifestation determination.” 34 CFR § 300.530(a) and (e). 

            The behavior must be determined to be a manifestation of the child’s disability if the parent and relevant members of the child’s IEP Team determine that:

·         the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

·         the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.

If Behavior is Determined to be a “Manifestation”

            If the IEP team determines that either of the above conditions applies, except for the following exception and the 45-day provisions described below, the school district cannot legally suspend the student beyond ten days, and the IEP team must conduct a functional behavior assessment and implement a behavior improvement plan for the student.  If a behavior improvement plan has already been developed, it must be reviewed and modified it as necessary to address the behavior.  

            Even if the IEP team determines that the behavior was a manifestation of the student’s disability, the school district may file for a due process hearing and ask the administrative law judge to order that the student receive services in an interim alternative educational placement for up to 45 days, on the basis that maintaining the student in his or her current placement "is substantially likely to result in injury to the child or to others." 20 USC § 1415(k)(3)(A). 

If Behavior is Not Determined to be a “Manifestation”

            If the team finds that the behavior was not a manifestation of the student’s disability, the school can suspend the student for the same amount of time that it would suspend a student without a disability for the same violation, but it must still provide ongoing education under the student’s IEP during the suspension.

The 45-day Rule

            Whether or not the IEP team determines that the behavior was a manifestation of the student’s disability, the IDEA specifically authorizes school districts to unilaterally (i.e., without the parent's consent) remove a student to an interim alternative educational setting for not more than 45 school days if the student carries a dangerous weapon to school or a school function, knowingly possesses, uses, sells or attempts to sell illegal drugs at school or at a school function, or inflicts serious bodily injury upon another person while at school or at a school. 20 U.S.C.S. § 1415(k)(1)(G)(i); 34 C.F.R. § 300.530(g).  The placement must include services to address the behavior for which the student is being suspended in the first place.     

            The IDEA provides that the interim alternative educational setting shall be determined by the IEP team and not the school district or AEA.  Doe v. Todd Co. Sch. Dist., 625 F.3d 459 (8th Cir. 2010), cert. den., 132 S. Ct. 367 (2011); 20 U.S.C.S. § 1415(k)(2); 34 C.F.R. §§ 300.530(d)(5), 300.531. 

Student who Might Be Deemed to Have a Disability

            A child who has not been identified as eligible for special education, who has engaged in behavior that violated a school rule, may assert any of the protections provided for in the IDEA if the school district had knowledge that the student had a disability before the behavior that precipitated the disciplinary action occurred. 

            The IDEA deems a school district to know that a student has a disability if, before the behavior that precipitated the disciplinary action occurred:

·         The parent of the child expressed concern in writing to the school district or AEA that the student is in need of special education;

·         The parent of the student requested an evaluation of the student pursuant to 34 CFR 300.300 through 300.311; or

·         A teacher of the student, or other personnel of the LEA, expressed specific concerns about a pattern of behavior demonstrated by the student to the director of special education of the school district or AEA, or to other supervisory personnel of the school district or AEA. 34 CFR 300.534(a) and (b); 20 U.S.C. 1415(k)(5)(A) and (B).

            A school district is not be deemed to have knowledge that a student has a disability if the student’s parent has not allowed an evaluation of the student pursuant to 34 CFR 300.300 through 300.311, has refused special education services; or the student has been evaluated in accordance with 34 CFR 300.300 through 300.311 and determined to not be a child with a disability under the IDEA. 34 CFR 300.534 (c); 20 U.S.C. 1415(k)(5)(C).

 

Appeals

            The parent of a child with a disability who disagrees with any decision regarding placement under 34 CRF 300.530 and 300.531, or the manifestation determination under 34 CFR 300.530(e), or a school district that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting an expedited due process hearing.  34 CFR 300.532(a); 20 U.S.C. 1415(k)(3)(A).  When an appeal is filed by either the parent or the school district, the child must remain in the interim alternative educational setting pending the decision of the ALJ or until the expiration of the time period specified in 34 CFR 300.530(c) or (g), whichever occurs first, unless the parent and the state department of education or school district  agree otherwise.  34 CFR 300.533; 20 U.S.C. 1415(k)(4)(A).

            After hearing the appeal, the administrative law judge (ALJ) may sustain the placement decision, or may:

·        Return the child with a disability to the placement from which the child was removed if the ALJ determines that the removal was a violation of 34 CFR 300.530 or that the child’s behavior was a manifestation of the child’s disability; or

·         Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

            The Iowa Department of Education is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed.  After the hearing is completed, the ALJ must make a determination within ten school days after the hearing. 

            Unless prior to the due process hearing, the parents and school district agree in writing to waive the resolution meeting described in 34 CFR 300.532(c)(3)(i), or agree to use the mediation process described in 34 CFR 300.506:

·         A resolution meeting must occur within seven days of receiving notice of the due process complaint; and

·         The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process complaint.

May an IEP Team "Disallow" a Student's Participation in a Nonacademic or Extracurricular Activity?

Occasionally I have cases in which an IEP team has refused to provide an accommodation or service for a student participating in a nonacademic activity on the basis that the IEP Team either believes the activity is not "educationally necessary," and/or, it has concerns about whether the student should be constrained from participating in the activity due to health, fatigue, and safety factors.

Let’s take, for example, "Abby," a student who qualified to be on her school’s mock trial team. She has nonprogressive muscular dystrophy, uses a wheelchair, and needs the same assistance for team practices and events as the assistance provided to her between 8:30 a.m.-3:45 p.m. each school day (e.g., assistance with the bathroom, carrying her backpack, laptop computer, books and papers, and getting things in and out of it, etc.  When Abby makes the team, instead of arranging for and scheduling the services she needs, the IEP calls a meeting and hands her parents an IEP amendment stating:

"Abby will be allowed to participate in nonacademic and extracurricular activities only to the extent that it is educationally necessary for her and the IEP team has determined that it is medically appropriate.  Abby will not participate in any nonacademic activities until she has been evaluated by an orthopedist, and the orthopedist has completed and returned to the IEP Team a report of the evaluation findings and responses to the team’s questionnaire.  After the orthopedist has submitted this information to the IEP team, it will meet and determine the nonacademic school activities in which Abby will be allowed to participate and the conditions of that participation."

When I read an amendment like this, I tend to conclude: (1) the school district is trying to avoid supplying and paying for the services that the student needs in order to participate in an activity for which he or she is qualified; (2) the school district is acting contrary to the federal statutes that protect the rights of students with disabilities to be educated to the maximum extent appropriate with nondisabled students, including participation in extracurricular and nonacademic activities. See, 34 C.F.R. §§ 300.320(a)(4)(ii), 300.107, and 300.117; and (3) that the school district has chosen to be part of the problem that Congress intended to cure when it enacted the Rehabilitation Act of 1973 (Rehabilitation Act), the Americans with Disabilities Act (ADA) of 1990, and the Individuals with Disabilities Education Act (IDEA). More specifically:
The plain language of IDEA regulations 34 C.F.R. §§ 300.320(a)(4)(ii), 300.107, and 300.117 establish that the extracurricular and nonacademic activities in which a student may participate are not limited to those activities that are "educationally necessary."

Neither the IDEA nor its implementing regulations confer any power on an IEP Team to "disallow" the participation of a student covered by the Act in an extra-curricular or nonacademic activities.
 
Neither the IDEA nor its implementing regulations confer any power on an IEP Team to make a determination of "medical appropriateness."

Section 504 of the Rehabilitation Act of 1973 provides: "No otherwise qualified individual with a disability . . . shall, solely by reason of his disability, be excluded from the participation in, or denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance." 29 U.S.C 794(a).
 
Title II of the Americans with Disabilities Act of 1990 provides: "No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. 12132.

The School District made no offer to pay for the medically-unnecessary evaluation although when a School District requires such an evaluation for a student served under the IDEA, the evaluation must be provided at no cost to the parent (Raymond S. v. Ramirez, 918 F. Supp. 1280, 1293-1294 (N.D. Iowa 1996)), and the child’s parents may not be required to use their medical insurance to pay for the evaluation, or the co-pay amount. Id.

Should You Excuse an AEA Consultant from an IEP Meeting?

I frequently receive questions from parents asking about whether specific teachers or consultants “must” attend IEP meetings.   Here are a few questions and responses:

Question 1:  I went to my son’s IEP meeting which had called to discuss changing his speech therapy services.  The speech and language pathologist (SLP) who has been doing his therapy was on the list of people who were supposed to be at the meeting.  When I arrived, the area education agency facilitator (a former AEA social worker) asked me to sign a form excusing the SLP’s attendance because he had excused the SLP from the meeting.  I responded that I should have been asked to excuse the SLP before he held the meeting, and that I would have said no and asked that it be scheduled when she was available.  The facilitator said it didn’t matter whether the SLP could come because he had received an email report from her.  I didn’t sign the excuse form, the emailed report wasn’t helpful, and the meeting was a waste of time (and used up two hours of my vacation time).   Can I keep this from happening again? 

Answer:   To keep this from happening again, you may want to try sending a copy of the following answer to the members of your son’s IEP team. 

The AEA facilitator had no business excusing the SLP and convening the meeting without her.  As soon as he knew of the SLP’s unavailability, he should have asked you if you were willing to excuse her, and if you said no, the meeting should have been re-scheduled for a time the SLP could attend. 

Parents have no obligation to excuse a specified teacher or area education agency consultant from an IEP meeting.  They should not do so if there any chance that the person’s expertise and knowledge apply to IEP topic that may be discussed or modified at the meeting. 

Congress felt so strongly about this that the IDEA and its implementing regulations require that if the IEP Team will discuss or modify any part of a child’s IEP related to the area of expertise of the Team member seeking to be excused, that before the parent makes written consent to excusing that member, the school district must first:

(a)          fully inform the parent of all information relevant the excusing the specific type of person, and must do this in the parent’s native language, or other mode of communication.  

(b)          make sure that the parent consents in writing to the excusing the required person, and the consent writing describes the specific meeting for which the excuse applies.

(c)           make sure the parent understands that his or her granting of consent is voluntary and may be revoked at any time.

A member of an IEP may be excused from attending an IEP meeting, in whole or in part, if the meeting involves a modification to or discussion of the member’s area of the curriculum or related services, if: 

(1)  the parent, in writing, and the public agency consent to the excusal; and

(2)  the member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to the meeting.

PE, IEPs, and New Federal Guidance

A 2010 report from the Government Accountability Office found that although PE is one of the general education courses in which students with disabilities most commonly participate, education had "provided little information or guidance on PE or extracurricular athletics for students with disabilities." The report further noted that few students with IEPs have specified accommodations for PE writen into their IEPs.

In response, in August of 2011, the U.S. Department of Education released a guidance statement titled Creating Equal Opportunities For Children and Youth With Disabilities to Participate in Physical Education and Extracurricular Athletics.  The statement is available online at:  http://www2.ed.gov/policy/speced/guid/idea/equal-pe.pdf 

Among other things, the DOE's statement notes that that according to researchers with the President's Council on Physical Fitness and Sports Research Digest, children with disabilities are 4.5 times less physically active than children without disabilities. This concerned the researchers since higher levels of sedentary behavior during childhood are likely to continue into adulthood, and contribute to an increased risk of adult obesity, and other health problems.

The recommendations contained in the DOE guidance include the use of equipment, as appropriate, such as a treadmill with an even, predictable walking surface, the Wii, Xbox, and PlayStation, and devices like them, to simulate participation in sports that some students with disabilities can't do in the traditional way. Most of all, the guidance emphasizes the importance of student participation, and notes that team play and sportsmanship cannot be taught except through participation.

Yesterday's blog article by Bryan Tosporek was a real breath of fresh air for attorneys who are working to assist the parents of children who are being plagued by bullies.  Brian wrote about a program at Johnson High School in San Antonio, Texas.  At the beginning of the school year, a school counselor recruited three football players to help protect a freshman against a wave of constant bullying.  By November, the program was such a success, and had added nine more football players and four more bullied students in need of protection. Next year, 18 football players at Johnson High will help eight incoming freshmen as part of the program.

This week, the three original "Bully Guards"—seniors Cohner Mokry, Ryder Burke, and Austin Carson—were all recognized at a school board meeting by their district superintendent.  In order to carry out their mission, the three left their classes a few minutes early so they could meet up with and walk the freshman to each of his classes. Not long after they had started doing this, the freshman began fitting right in with the three seniors.  Burke told a local newspaper: "We went through high school and have had a great experience, It should be everybody having that great experience."

What a great developmental experience this is for the bully guards and the bullied kids alike! Kudos to the school counselor and football players who got this started!  How about bully guards who are wrestlers, basketball players, and volleyball players?  Is anyone out there in Iowa listening?


Brian's full article is at:   http://blogs.edweek.org/edweek/schooled_in_sports/2012/04/texas_hs_football_players_spend_spare_time_as_bully_guards.html?cmp=ENL-EU-NEWS2

Effective Use of Contingent Praise with Students Who Have Behavioral Issues

                I have never been ask to file a complaint on behalf of the special education needs of a child identified with behavioral issues whose teacher skillfully and consistently gives the child verbal praise contingently to increase the child’s appropriate behaviors.  In contrast, I am frequently contacted by parents of children who are concerned that the behavior procedures used by their child’s school/teacher have decreased the child’s behavioral performance, and/or resulted in a series of disciplinary actions.
  

                An examination of these situations usually indicates that the child’s school or teacher primarily relies upon control and reactive strategies to deal with problem behaviors, and delays incentives (“positive reinforcements”) until the student has “earned” them.  Under those circumstances, it is no surprise to find that the student has begun to manifest “counter-control” behaviors, and the teacher and student are engaged in ongoing and serial power struggles.  These cases demonstrate that despite more than fifty years of research, many educators have not learned that control and reactive strategies, and delayed reinforcement procedures, are vastly less successful in shaping, increasing, and maintaining appropriate social and academic behaviors in students who have behavioral problems at school.

                It is perplexing that, given the extensive base of empirical support for the use of contingent teacher praise in increasing appropriate student behaviors that so many educators have not learned how to competently use this highly effective means of assisting students whose behaviors interfere with learning.  A 2010 research article published in Preventing School Failure, titled Using Teacher Praise and Opportunities to Respond to Promote Appropriate Student Behavior (article is located at http://amywagner.wiki.westga.edu/file/view/teacher+praise.pdf/238204939/teacher+praise.pdf)  provided that teacher attention to students with behavioral issues comes in the form of high rates of teacher reprimands for inappropriate behaviors, and that students with the most aggressive behaviors have the highest rates of teacher reprimands and the lowest rates of positive teacher attention -  even when they appropriately comply with teacher commands.  

                The authors of the above-mentioned article point out that regardless of a student’s age or disability, teacher use of contingent praise has been shown to increase a variety of appropriate student behaviors and academic skills, including following directions, engagement in instruction, on-task behavior, correct academic responding, and work accuracy and completion.  They noted and cited supporting authorities who have found that the skilled use of contingent praise has been repeatedly shown to increase positive behavior while simultaneously decreasing and disruptive problem behavior, and that teacher praise combined with decreased attention to problem behavior lead to decreases in talking outs and arguing with teacher requests as well as other disruptive behavior.

                When considering the lack of a particular student’s progress on behavioral goals, as professionals, teachers should be aware of the amount of attention they are giving to desired behaviors and to inappropriate ones.  As a component a teaching improvement program, some schools might employ procedures like those set out in the above-cited article, as a self-monitoring exercise during which teachers review a series of 15 minute recordings of their classes, and record data on their use of commands, reprimands, and contingent reinforcement with all students or with a particular student.  

Students with Autism and Special Education Litigation

In an interesting blog article, the director of the National Institute of Mental Health, Thomas R. Insel, M.D., has written about the increased number of children in the U.S. who have been diagnosed in with autistic disorders. Dr. Insel concludes that diagnostic changes and ascertainment do not account for most of the increase, and that at this point, on the basis of data collected and analyzed to date, it appears that more children are affected with autism spectrum disorders, and more of those children are being detected.

Dr. Insel's article comes on the heels of a study published last year by Perry A. Zirkel, professor of education and law at LeHigh University.  In that study, Zirkel looked at the incidence education-related legal actions involving involving children diagnosed with autism and the issues of a free and appropriate public education (FAPE) and least restrictive environment (LRE).  He found that while the number of students in special education who are diagnosed wth autism has increased, between 1993 and 2008, the percentage of special education cases involving FAPE and LRE issues in the education of a child with autism, has remained at at around 32 percent of the total number of special education litigations involving those issues.  Among his conclusions, Zirkel states that the ongoing high rate of such cases is probably due in part to the limited success that school districts have had in effectively addressing the needs of children with this complex disability.

The full text of Dr. Insel's blog is located at:
http://www.nimh.nih.gov/about/director/index.shtml 

The full text of Dr. Zirkel's article is located at:
http://blogs.edweek.org/edweek/speced/Zirkel%20Article%20on%20Autism%20Litigation%20Disproportional.PDF

 

Independent Educational Evaluations and the IDEA

             The Individuals with Disabilities Education Act (IDEA) provides that parents may obtain an Independent Educational Evaluation (IEE) if they disagree with the evaluation that has been performed by the school district and area education agency. IDEA §1415(b)(1).  The rules that implement this provision are set out in the IDEA’s implementing regulations at 34 C.F.R. § 300.502. 

             An IEE is "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question."  It isn’t limited only to evaluating a child's academic or intellectual skills, but may include an evaluation of any skill related to the child's educational needs. On this basis, parents may request an IEE, for virtually any purpose if it impacts the child's education.

             Both school districts and parents are often confused about under what circumstances the school district is financially responsible to pay for an IEE.  Before discussing this, a couple of points need to be made:

1.            Neither the IDEA nor its regulations limit a parent’s right to obtain an independent educational evaluation of their child --unless a parent wants the school district to pay for it.

2.            Whether or not an IEE is paid for privately or by the school district, the report from the IEE must be “considered” in any decision made with respect to the provision of a free and appropriate education (FAPE) to the child. 34 C.F.R. 300.502(c).  

With respect to point 2, a school district is not required to accept the findings or recommendations of an IEE report.  Instead, the IEP team must review and discuss it.  This doesn’t mean that a school district may casually disregard an IEE report; in fact, several sections of the federal regulations direct school districts to ensure that such information provided by parents is properly considered. See 34 C.F.R. §§300.343(c)(2)(iii), 300.502(c), 300.533(a)(1)(i). 

             If a parent disagrees with an evaluation of his/her child, and wants the school district to pay for an IEE,  the parent should inform the school district in writing that s/he disagrees with the evaluation that has been performed by the school district/AEA, and that s/he is seeking the IEE at public expense.  In response, one of two things should happen:

1.            The school district/AEA will agree to the request, and provide the parent with information about where an IEE at public expense may be obtained and provide the agency criteria required of the evaluation, or

2.            The school district/AEA will could file a request for a due process hearing to show that their evaluation is appropriate. At the hearing, the parent may present information supporting his/her belief that the evaluation is insufficient and reasons why an IEE should be performed and paid for by the school district.  The administrative law judge conducting the hearing will decide whether or not to order the school district to pay for an IEE. 

                            34 C.F.R. § 300.502. Independent Educational Evaluations

(a) General.

                (1) The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs (b) through (e) of this section.

                (2) Each public agency must provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in paragraph (e) of this section.

                (3) For the purposes of this subpart--

                                (i) Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question; and

                                (ii) Public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with § 300.103.

(b) Parent right to evaluation at public expense.

                (1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs (b)(2) through (4) of this section.

                (2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either--

                                (i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

                                (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.

                (3) If the public agency files a due process complaint notice to request a hearing and the final decision is that the agency's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.

                (4) If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation.

                (5) A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.

(c) Parent-initiated evaluations. If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation--

                (1) Must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and

                (2) May be presented by any party as evidence at a hearing on a due process complaint under subpart E of this part regarding that child.

(d) Requests for evaluations by hearing officers. If a hearing officer requests an independent educational evaluation as part of a hearing on a due process complaint, the cost of the evaluation must be at public expense.

(e) Agency criteria.

                (1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent educational evaluation.
                (2) Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.

Doctor Letters and Special Education Needs

Today, I'm writing to strongly urge parents of school children with medically-based disabilities to ask their child's doctor to write a summary letter for the child's school district that verifies and thoroughly describes the child's medical condition, and informs the school about the child's health-related needs at school and extra curricular activities.  I recommend that parents copy the letter and give the copy to their child's school district.  I further recommend that parents ask the doctor to write updated letters each time there is any significant change in the child's health, or at the least, at the beginning of middle school and the beginning of high school.

Although I've never had a case in which the parents of a child with a medical disability had not given copies of his or her medical records to the school district, I've noticed that some of those records are written in a manner that could be misinterpreted by school personnel who have no medical background.  This is why I strongly urge parents to make sure that letters written for the purpose of verifying their child's disability and communicating his or her health needs to the school are thorough and written in clear and unambiguous language.

In the absence of a letter of this type, school districts address the educational needs of a student with medical disorder without regard to the medical basis of the disability.  While in some circumstances, the school may provide sufficient services, in other cases it may not, and in still others cases, a school's lack of knowledge about a student's medical risks can be exceptionally dangerous.

An painful example of this is the California wrongful death case in which the court's decision turned on its interpretation of a doctor's letter contained in the school district's records. 

The letter, which had been written several years before the student's death while running laps in gym class, described the boy's heart problem as mild and said he could "undertake a full school program, including moderate involvement in sports and running games," then added that "he should not be committed to any sustained, grueling, competitive training or conditioning program, such as might be undertaken with varsity football or basketball."  The school nurse testified that she interpreted this to mean that the boy needed no special handling, did not need adaptive PE, and that no health warning note needed to be sent to the gym instructor.  The instructor testified that because he didn't know about the boy's weak heart, he thought the boy was having a seizure, and didn't start cardiopulmonary resuscitation.