Saturday, November 11, 2017

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.  

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