Special Education and Retaliation

“A school can do about whatever it wants to do until a parent gets a lawyer.”

- Several school and AEA administrators

Question:
I want to hire a lawyer to represent me in a special education mediation, but I’m afraid the school district will retaliate against me or my daughter. What can I do?

Answer:
The best way to protect against or deal with retaliation is to engage the services of a lawyer who specializes in representing parents and children in special education law matters. You can obtain a list of special education attorneys practicing in Iowa by contacting the Iowa Department of Education, or the ASK Resource Center at (800) 450-8667 or TDD: 1(800) 735-2942.

After I have filed a request for mediation, due process, or a state complaint with the Iowa Department of Education, and served it on the school district, I have never had a parent report retaliation. The reason for this is that school districts know retaliating after a parent has engaged a lawyer would be an incredibly stupid thing to do.

Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) protect entitled individuals with disabilities against discrimination, and protect their parents when acting appropriately on their behalf to ensure their rights. Specifically, Section 504, which references Title VI of the Civil Rights Act of 1964, states that recipients of Federal funds, which would include school districts, “shall not intimidate, threaten, coerce or discriminate against any individual for the purpose of interfering with any right or privilege secured by the Act, or because the individual has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.”

Instead of retaliating, after school districts are served with a legal action, some “clean up their act” to avoid creating additional evidence that would support or substantiate the parent's case.

Child Find and Initial Evaluation

The Individuals with Disabilities Education Act (IDEA) includes the Child Find mandate (20 U.S.C. § 1412(a)(3)), which essentially requires schools to identify, locate and evaluate all children with disabilities, regardless of severity, including children who receive passing grades and are “advancing from grade to grade,” children who attend private schools and public schools, highly mobile children, migrant children, homeless children, and children who are wards of the state. 34 C.F.R. § 300.101; 281 I.A.C. 41.101.

Iowa’s Rules of Special Education require that a child be evaluated when the school or AEA is aware of facts and circumstances that would cause a reasonably prudent school or AEA to suspect that the child might have a disability for which the child might be eligible for special education and related services. If it is suspected that a child’s educational difficulties arise from a disability and that the child may need special education services, the AEA and school district are obligated to promptly seek parental consent to conduct a Full and Individual Initial Evaluation (FIE).

Although a school district may attempt to resolve educational difficulties before deciding to conduct a FIE, this must not delay an appropriate evaluation if the child is suspected of having a disability, regardless of the number of days, tiers, or levels in such interventions the child has completed, if any. As stated by the United States Department of Education concerning “pre-referral interventions,” the school district “in conjunction with the AEA “cannot refuse to conduct the evaluation or delay the evaluation until the alternative strategies have been tried if the school district  suspects the child has a disability.” Letter to Anonymous, 19 IDELR 498 (OSEP 1992). 

Occasionally, some school personnel do not “suspect” a child has a disability, although the parent has provided copies of the child’s diagnostic report, and symptoms of the disability are significantly interfering with the child’s functioning at school. When this problem confronted an Iowa parent, she contacted me.  With a few changes to conceal her identity and her written permission, I am posting the first parts of our initial email exchange. I was especially pleased that the parent contacted me to address this matter before her child missed further school and became more frustrated at school.  

How can we get the school to evaluate our first grade son for special education services? He was diagnosed with and has been treated for ADHD since he was three. At home we keep problems to a minimum by using a visual schedule, clearly explaining rules and checking to make sure he understands (at at time when he isn’t tired, hungry or upset), preparing him in advance for transitions, and positive reinforcement. His doctor and preschool teachers told us that punishments will backfire, so we keep them brief and to a minimum. However, punishments seem to be the only way the school deals with his symptomatic behaviors.

This year, he has been suspended four times in three months. The first time the principal had me pick him up because at recess he tried to go to the playground by crawling out a (ground floor) window. The next time he was given an in-school suspension for telling the principal, “I hate you,” after he was sent to her office for chewing his pencil after being told to stop. The next time she had me take him home because he wouldn’t stand still on the risers while rehearsing for the Thanksgiving concert. He was suspended for the rest of the day and not allowed to participate in the concert. He is currently on a day-and-a-half suspension for a “weapons violation” (at recess he was using his bare hand as a "gun" and “shooting” at other boys who were falling down very dramatically). 

I have given the principal copies of his evaluation reports from 2016 and 2017, and have provided a report from his speech therapist (he has articulation difficulties), and asked her at least seven times (in person and by email) to have him evaluated. Each time she has responded, “In Iowa we don’t like to put labels on children. While he may have ADHD, Iowa is a ‘noncategorical’ state in which special education is for children who have ‘educational disabilities,’ not medical diagnoses.” When I pointed  out that the behaviors for which he is punished at school reflect his ADHD symptoms, she responded, “Whether or not he has ADHD, he needs to learn to stop making bad choices.”

This is very frustrating. I would like to talk with his teacher, but the principal has told me that I can only communicate through her. . . .

To make a long story short, the parents and I resolved this matter through a state-facilitated mediation. The child now has an appropriate IEP and BIP, and is receiving compensatory education to make up for the class time he missed while being suspended from school. The school district’s attorney educated the principal in regard to the District’s duties under Child Find, the parents are now able to communicate as needed with their child’s classroom teacher, and some other issues were satisfactorily addressed.

Parents' Rights and the Procedural Safeguards Manual

Question:  Is there one piece of advice you think is important for all parents of children in special education?

Answer:  Absolutely.  Every parent should carefully read the Procedural Safeguards manual that you were given at your child’s IEP meeting. Procedural Safeguards means Parents Rights.

Congress believed that informed parents are so important that in the Individuals with Disabilities Act (IDEA), it required schools to provide this booklet to parents.

The Procedural Safeguards Manual provides a general overview of information about special education and the rights available to parents and children under the IDEA. and the Iowa Administrative Rules of Special Education. Some of the areas reviewed in the manual are:

• Written notice to parents
• Parental Consent
• How to Obtain Your Child’s Records
• Evaluations
• School Discipline
• What You Can Do If You Disagree with Your Child’s IEP, or What’s Happening At School
• State Complaints, Due Process, Mediation

 Although the Procedural Safeguards Manual won’t answer every question a parent may have, it covers much of what parents most need to know.

If you have misplaced your copy, you may download a copy from the Iowa Department of Education’s website at: https://www.educateiowa.gov/pk-12/special-education/parent-information/procedural-safeguards-manual-parents-rights-children-ag-0  Downloadable copies of Iowa's Procedural Safeguards manual are available in English, and in Arabic, Bosnian, Loatian, Serbo-Croatian, Spanish and Vietnamese.

Physical Restraint and Seclusion I

With a few changes to conceal their identities and the written permission of a couple who became my clients, I am posting the first parts of our initial email exchange.

Dear Ms. Richard:  My daughter is a first grader who was diagnosed with autism when she was three. She attends [School Name] in [Town Name], Iowa. She is terrified of loud, unexpected noises. This is in her IEP and each month her teachers are supposed to prepare on the day of each month when the emergency sirens are tested and help her put on sound-cancelling headphones. Yesterday I received a call from the school principal. He told me that toward the end of music class, my daughter was given a “time out.” When I asked what happened, the principal told me a new paging system was activated before installation was complete, and made a loud noise that made everyone jump. He said my daughter covered her ears, closed her eyes, curled up in a ball, and screamed for over two minutes. She was still curled up in a ball with her eyes closed and ears covered when her classroom teacher came to take the children back to their classroom. When she would not line up, an associate was called, who put her in some kind of a hold and carried her to the time out room. The principal said this was the first time they “ever had to close the door on her,” and that he was “really surprised because usually when they put her in there, they just have an associate sit in the doorway to keep her from leaving,” but this time she began loud crying and trying to crawl out under the chair. No one has ever said or written anything to us about using time outs with our daughter. Before I could say this, the principal said he had to get going and hung up. My wife told me that when she picked up our daughter from school, she was shivering, and had wet panties and leggings. This morning my daughter refused to eat breakfast or get dressed. She was shaking and hanging on to her mother and saying she didn’t want to go to school. They stayed at home and I went to the school to find out what was going on. When I went to the school office, the principal gave me a “Restraint and Confinement” report which said what he told me the day before, and showed that the time out was 25 minutes long. The principal showed me the “time out” room which turned out to be a bare room, about 6’ x 7,’ with cement block walls. My first thought was that it looked like a prisoner containment cell in a war zone. A cage was installed over a dim light bulb. The door had 8 x 12 reinforced window installed higher than my daughter’s head. The vinyl baseboard had been torn off in places, the room probably hadn’t been painted since the school was constructed, and on the floor tile there was a dried pool of urine. It took every ounce of the self-control I developed in the [Branch of the Military] to get out of the school building without losing my temper. My wife and I want to know if it is legal in Iowa for schools to do this. . . .

Dear [Parent], Under the facts you have provided, it sounds like your child’s school is using seclusion, a method of discipline that is not supported by research, in an unreasonable manner that is prohibited by Iowa’s regulations that govern public education. Restraint and seclusion trigger strong emotions, including fear and loss of control. They increase the child’s anxiety, decreasing the child’s ability to manage behavior, thus increasing future problematic behavior. Restraint and seclusion should only be used as a last resort when less-restrictive measures have failed or aren’t possible, and physical safety or destruction of valuable school property is at severe risk. Iowa’s regulations prohibit school employees from using physical restraint and seclusion to punish minor infractions. The Iowa Department of Education gave a few examples of minor incidents in a decision issued May 30, 2017,
https://www.educateiowa.gov/documents/appeal-decisions/2017/10/book-28-decision-041 stating that “minor infractions” include “stepping out of a line of students, having an “attitude, being out of instructional control, foul language, and saying ‘I’ll kill you’ without having the means to do so.”

Because your daughter has an IEP, this matter is addressed by state and federal special education laws. The Individuals with Disabilities Education Act (IDEA), the federal law that provides states with some of the funds for special education, requires that children eligible for special education receive “free appropriate public education (FAPE).” One of the requirements for a FAPE is an education consistent with state standards. These standards include state regulations governing the use of restraint and seclusion. In Iowa, a student is secluded if the child is confined in a room or some other enclosure from which the child’s egress is restricted. See Iowa Admin. Code r. 281—103.6. This rule does not require that a child’s egress be restricted by a closed door; a child is also secluded when the child’s egress is restricted by a staff member sitting in the seclusion room’s doorway. . . .

Pre-determined IEPs

“A ‘one size fits all’ approach to special education will not be countenanced by the IDEA.”

–  Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840, 859 (6th Cir. 2004).

            Some school districts invest in a program and make the mistake of using that program exclusively for students with IEPs who appear to have similar learning issues. However, this is exactly what a school district should not do. A school district is not entitled to decide that because it has a program, that the program will always be appropriate to address the unique learning needs of a particular child.

            A school district violates the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C.S. § 1400 et seq., procedures if the IEP Team independently develops IEP without meaningful parental participation, presents it to the parent using a "take it or leave it" position.  If it does so, then even the parents' decision not to cooperate with the IEP may not excuse the district's error. See Ms. S. ex rel. G v. Vashon Island Sch. Dist., 337 F.3d 1115, 1118 (9th Cir. 2003).

            Predetermined IEPs violate at least two key requirements of the IDEA: (1) that special education and related services meet the unique needs of a child with a disability (see §§1401(26), (29)), and (2) the right of parents, as full members of the IEP team to have meaningful opportunity to participate in the development of the IEP.

            A free appropriate public education (FAPE) as defined by the IDEA, includes both “special education” and “related services.” §1401(9). “Special education” is “specially designed instruction . . . to meet the unique needs of a child with a disability”; “related services” are the support services “required to assist a child . . . to benefit from” that instruction. A State covered by the IDEA must provide a disabled child with such special education and related services “in conformity with the [child’s] individualized education program,” or IEP. §1401(9)(D). See  Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017). The IEP is “the centerpiece of the statute’s education delivery system for disabled children.” Honig v. Doe, 484 U. S. 305, 311 (1988). 

            Predetermination can deprive parents of a meaningful “opportunity to participate in the formulation process.” M.M. v. Lancaster Cty. Sch., 702 F.3d 479, 488 (8th Cir. 2012) quoting Lathrop R-II Sch. Dist. v. Gray, 611 F.3d 419, at 24 (8th Cir. 2010).  A comprehensive IEP prepared by a child’s “IEP Team” (which includes teachers, school officials, and the child’s parents), must be drafted in compliance with a detailed set of procedures. See Endrew F. at 994 citing 20 USC §1414(d)(1)(B). These procedures emphasize collaboration among parents and educators and require careful consideration of the child’s individual circumstances. See Id. Citing 20 USC §1414. The IEP is the means by which special education and related services are “tailored to the unique needs” of a particular child. See Id.  citing Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 208, (1982) (“Congress sought to protect individual children by providing for parental involvement . . . in the formulation of the child's individual educational program.”).       

            Federal courts have that predetermined IEPs have violated the IDEA in a number of cases.  For example, in Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840 (6th Cir. 2004), the court found that the school district  “clearly” had an unofficial policy of refusing to consider the Lovaas ABA program for autistic children and that its staff attended IEP meetings already having predetermined that they would use the that program for all children with autism. Likewise, in  W.G. v. Bd. of Tr. of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir. 1992), superseded by statute on other grounds, as recognized in R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932 (9th Cir. 2007), the school district proposed an IEP that would place a student in a preexisting, predetermined program. At the IEP meeting, the special education teacher advocated use of the Scott Foresman Focus Program, and did not consider alternatives to that program despite the objections of the parents, who later testified that the district asserted  a "take it or leave it" position at the meeting.  

Who is Required to Attend an IEP Meeting?

Question:  At a recent IEP meeting, both the special education teacher and general education teacher left after 15 minutes. As a result we couldn't finish the meeting agenda.  Does Iowa law say anything about this?

Answer:  Yes.

The school district must ensure that the following members of the IEP team attend the meeting:

a.  At least one parent of the child;

b.  At least one regular education teacher of the child;

c.  At least one special education teacher of the child;

d.  A representative of the school district who:

     (1) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

      (2) Is knowledgeable about the general education curriculum; and

      (3) Is knowledgeable about the availability of resources of the school district.

e. An individual who can interpret the instructional implications of evaluation results, who may also be the same person as the person described in b-f.

f. At the discretion of the parent or school district, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate.

Congress felt so strongly about the attendance of these people at IEP meetings 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 IN ADVANCE OF THE MEETING of all information relevant to the excusing the specific type of person,

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

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

If a meeting involves a matter in an IEP team member’s area of curriculum or related services, that member may not be excused from any part of an IEP meeting unless:

1.  the parent, in writing, and the public agency both 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.

See Iowa Admin. Code r. 281-41.321.

Playground Accessibility

I recently took my niece to play at a newly constructed elementary school playground. I noticed that much of the engineered wood fiber (EWF) had been kicked out of the areas below the swings, climbing equipment and slides. The EWF seemed fluffy” and not at all compacted. As I crossed the drifts and ruts in the playground’s surface, I was glad I was wearing sturdy laced athletic shoes. 

While watching my niece, I sat on a bench and visited with a mother whose 9 year old son who was seated next to her in a wheel chair. While we talked, she kept an eye on her 7 year old son and his friend who were running across the ramps of the colorful playground structure. She told me that she wished her 9 year old  could also enjoy the playground, but that despite his good upper body strength, he cannot wheel his chair across the wood chip surface without becoming stuck after a few feet. She said that she can no longer carry him to the swings, or take his wheelchair to the ramp of the playground structure, then carry him to his wheelchair. I explained to her that the Americans with Disabilities Act requires that school playground surfaces be accessible to children who use wheelchairs and the adults who supervise them.  I further explained that a complaint could be filed with the U.S. Department of Education Office of Civil Rights or the U.S. Department of Justice Disability Rights Section to enforce her son’s right to an accessible playground surface.

Here’s a quick explanation of the ADA law that applies to school playground surfaces, and some information about how find out about the installation and maintenance required in order for a particular EWF playground surface to be “ADA compliant.”

Applicable Law

Title II of the Americans with Disabilities Act (ADA) is a statute that prohibits nondiscrimination on the basis of disability by state and local entities including public schools.  It provides that 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, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 

The ADA’s implementing regulations require each newly constructed or altered facility to be readily accessible to and usable by individuals with disabilities. State and local government facilities must follow the requirements of the 2010 Accessible Design Standards. 

A school playground that has been altered or newly constructed on or after March 15, 2012, must comply with sections 1008.2.6.1 and 1008.2.6.2 of the 2010 Accessible Design Standards.

1.  Section 1008.2.6.1 of the 2010 Standards addresses access for children with mobility disabilities and for adults who cross the playground to supervise children. It requires the playground ground surface to comply with ASTM F 1951 at the time of installation and throughout the life of the playground. The playground surface under and around play equipment must also comply with ASTM F 1292. 

2.  Section 1008.2.6.2 requires that playground surfaces comply with the shock-absorption standards set out in ASTM F 1292 from the time of installation throughout the life of the playground, and requires a school district to close any noncompliant playground until it is brought into compliance.

How to find out what is required in order for an EWF playground surface to be “ADA compliant?”

1.  Obtain from the school district the name. manufacturer and vendor of the EWF product used on the playground. 

2.  Go to the website of the manufacturer or vendor and download the ASTM lab test reports for the product. Sometimes these are called “wheelchair” and “head impact” reports.

3.  Read the lab test report to find out the conditions under which the EWF was tested and passed its tests for accessibility and "impact attentuation" (shock absorption).  The product must be installed and maintained in accordance with those conditions in order to comply with ASTM F1292 and F1951.  

Note:  All of the EWF product lab reports I have read state that the product complies with ASTM F 1292 and ASTM F 1951 only if it is installed in four inch layers and compacted between each layer until a 12 inch compacted depth is achieved.