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.