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Disability Discrimination

 

DID THE EMPLOYEE STATE VALID DISABILITY CLAIMS BASED ON HER ASSOCIATION WITH A DISABLED CHILD?

Case citation:  Ruiz v. Edcouch-Elsa ISD, 2014 WL 1385877 (S.D. Tex. 2014) (unpublished).

Summary:  Sandra Ruiz was an employee of the Edcouch-Elsa Independent School District.   Ruiz sued the school district after her termination, claiming that she was terminated because of her role as a caregiver to her disabled son in violation of the Texas Commission on Human Rights Act (TCHRA), the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Family Medical Leave Act (FMLA).

Ruiz alleged that she was the mother of a special needs child whose medical condition was widely known by the district. Ruiz claimed that when she was terminated, she was handed a memorandum indicating that her termination was due to absences related to her son’s medical condition.  She claimed that she was terminated because of her association with a person with a disability.  The lawsuit also alleged claims for retaliation and gender discrimination. The district sought dismissal of each of the claims.

Ruling:  The trial court dismissed the disability-related claims brought under the TCHRA, as well as the TCHRA, Title VII and ADA retaliation and gender discrimination claims.  However, the court let Ruiz proceed on the ADA discrimination claim based on her association with her disabled son, and the FMLA retaliation claim.  The trial court observed that the ADA not only prohibits discrimination against a disabled individual, but also prohibits discrimination against an individual who is known to associate with a disabled individual.  According to the court, Ruiz’s allegations were sufficient to state a claim for disability discrimination based on her association with her son.  Thus, the ADA claim was not subject to dismissal.

The trial court determined, however, that while the TCHRA prohibits discrimination, it does not prohibit discrimination based on disability by association.  Therefore, the claim was dismissed. The court also dismissed the retaliation claims under the TCHRA, ADA, and Title VII.  Ruiz had not alleged that she had engaged in a protected activity under those statutes that led to her termination. The gender discrimination claims brought under Title VII and the TCHRA also failed because she did not exhaust administrative remedies by including in her Charge of Discrimination allegations related to gender discrimination.

According to the trial court, Ruiz had stated sufficient facts to pursue a claim for retaliation under the FMLA.   Specifically, she claimed that she was protected under the FMLA because she took time off to care for her son who had a serious health condition.  Ruiz also stated that she suffered an adverse employment action, and that the decision to terminate her was based on her taking leave protected by the FMLA.  According to the court, those allegations were sufficient to state retaliation claims under the FMLA.  The trial court let Ruiz proceed on the FMLA retaliation and ADA disability discrimination claims, but dismissed the remaining causes of action asserted in the lawsuit.

 

Private Placement

 

WAS THE STUDENT ENTITLED TO A PRIVATE PLACEMENT AND INDEPENDENT EDUCATIONAL EVALUATION?

Case citation:  Studentv. Beaumont ISD, Dkt. No. 205-SE-0413 (Hearing Officer Lynn E. Rubinett, December 16, 2013).

Summary:  The student lived within the boundaries of Beaumont Independent School District, but attended a private Applied Behavior Analysis (ABA) program. In 2010, the student began attending an extended school year program with Beaumont ISD, while still enrolled in the ABA program one day per week during the summer.  After a few weeks, the mother returned the student to the ABA program full time, when the student began exhibiting aggressive behavior. The family then initiated due process proceedings against the school. The district and the family settled the dispute.  The district agreed to pay for the student’s placement at the ABA program temporarily and then the student would transition back to the district.

This dispute arose when the parties met regarding the settlement agreement that was set to expire and the student was scheduled to return to the district.  The student was asked to reenroll, while the mother did not know that student had not been enrolled the entire time while the student attended the private ABA program. Further, when the mother observed the classrooms where the district planned to place the student, she did not believe that they were appropriate for the child.  As a result, the parent wanted the student to remain at the private ABA program.

When the mother requested that the student remain in the ABA program, the district asserted that updated assessments were needed.  However, the mother refused to give consent for updated assessments, objecting that the school district had waited too long to require a new assessment.  The district did not seek the new assessment until April, and the student was set to transition back to the district in May.

The parents requested a due process hearing, arguing that the school district’s plan was not appropriate for the student. Further, despite the fact that mother repeatedly refused to give consent to the district to conduct updated assessments, she requested independent educational evaluations (IEE) of the student. In response, the district filed a Motion to Override Lack of Parental Consent, in order to try and carry out the updated assessments as part of its legal obligation. The parents also sought an independent psychological evaluation, arguing that it was a necessary response to a psychological evaluation the district had on record and that the ARD committee used.   The parents sought reimbursement for a private psychological evaluation and sought an independent Functional Behavior Assessment (FBA).

Ruling: The hearing officer ruled in favor of the student regarding the issue of whether the district offered a timely and appropriate individualized education program beginning in May 2013. Even though the previous transition plan had not worked, the district failed to develop a plan suited to the student’s individualized needs to transition, and it was likely that the same problems would recur.

On the issue of whether the student was entitled to private placement at district expense, the hearing officer held in favor of the student. Evidence showed that there was a lack of individualized attention in the proposed classroom placements that the student would need. Further, the functional life skills classroom where the district planned to place the student was noisy and the staff lacked proper behavioral intervention training.

Finally, the hearing officer held that the student was not entitled to reimbursement for the independent psychological evaluation in September 2013 and the anticipated independent FBA. In Texas, there is a one-year statute of limitations for IDEA claims so the request was time-barred. The evaluations at issue for which the student and parents wanted updated independent evaluations were over two years old.   The hearing officer ordered the district to pay the costs of the private placement.  The hearing officer also overrode the parents’ lack of consent for testing so the district could provide updated assessments.

Comments:  The hearing officer noted that the district mischaracterized one of the critical ARD meetings as a “transfer ARD.” The hearing officer observed that a “transfer ARD” is appropriate only when students are transferring from one public school to another. Here, the student was moving from private school to public.  The district was also in error when it claimed that it could not begin planning for the student until he was enrolled in the district.  On top of that, the hearing officer held that the placement was decided prior to the development of the IEP: “This sequence of events runs contrary to IDEA, as it constitutes predetermination based on the District’s available resources rather than the student’s individual needs.”

 

FAPE

 

DID THE STUDENT’S EVALUATIONS AND PROGRAM RESULT IN THE DENIAL OF FAPE?

Case citation:  Student v. Richardson ISD, Dkt. No. 180-SE-0413 (Hearing Officer Ann V. Lockwood, November 14, 2013).

Summary:  The student with autism and a speech/language impairment transferred to Richardson Independent School District in 2010.   The student exhibited behavioral issues in a number of areas including following directions, showing respect to others, and self-discipline.  Although the student performed well academically, persistent and escalating behavioral issues began to concern school staff.  The district, therefore, created a behavior intervention plan (BIP) for the student. Over the course of the student’s time in the district, the staff used restraint with the student when it was believed there was an “imminent risk of physical harm to others.” These incidents were documented and the student’s parents were notified.

The district had a point sheet for the student as a means of reinforcing positive objectives. The parents disagreed with the point sheet as designed and used. At an Admission Review and Dismissal (ARD) Committee meeting in the beginning of 2013, the committee reviewed the student’s privately obtained Functional Behavioral Assessment (FBA), which suggested Applied Behavioral Analysis (ABA) therapy. The FBA recommended the occasional use of electronic devices to reinforce positive behavior. The parents agreed with the school district that the district should conduct its own FBA, though the disagreement over the use of the point sheet continued. The student’s parents met with the principal to discuss the continued use of restraint, in particular during one incident when the student was restrained after acting out.

The parents also did not agree with the district’s decision not to use a Licensed Specialist in School Psychology (LSSP) to conduct the FBA, and instead use a third party non-profit organization.  The student’s BIP was revised following the district’s FBA. In an ARD meeting held in March of 2013, the parents requested that the student be moved to a private placement at the district’s expense. They disagreed with the proposed IEP, and secured their own independent psychological evaluation. Ultimately, the student withdrew from the district, and began receiving ABA therapy. The parents requested a due process hearing, arguing that the district failed to provide the student with FAPE and violated the Individuals with Disabilities Education Act (IDEA) by contracting with a third party to conduct the FBA.

Ruling:  The hearing officer held in part for the student and in part for the school district. According to the hearing officer, the district did not update the student’s BIP, even though the student had made little behavioral progress.  While initially the district’s program for the student was problematic, the school provided an updated FBA in the spring, along with a revised IEP and BIP that provided student FAPE.

The parent argued that the school used restraint too frequently and that it was used improperly.  The parent requested that it not be used at all. The parents also claimed that they were not given proper notice when the school used restraint.  The hearing officer disagreed and found that the district had provided proper notice to the parents.  However, the district’s continued use of physical restraint was a factor that should have led the district to conduct an updated behavioral assessment and seek advice and support from a qualified board certified behavior analyst (BCBA).

The student’s parents were entitled to reimbursement for the cost of the independent   FBA that the parent obtained, as well as the cost of ABA therapy they sought for the student until the ARD meeting where the school district offered an appropriate program.  Additional requests for reimbursement were denied. Thus the school was required to reimburse the parents in the amount of $1200.

The hearing officer ruled in favor of the school district regarding contracting with a third party to conduct an FBA. According to the hearing officer, after parents give consent to the FBA, the district bears the responsibility as to how to carry it out.   Here, once the parents gave consent for the updated FBA, the school district was entitled to conduct the evaluation with personnel of the district’s choice.   Once the parent expressed concerns about the experience level of the first LSSP, the district sought services from qualified, experienced evaluators from a non-profit organization on contract with the school district.  The district’s failure to inform the parents of the choice of evaluators and to provide them with a copy of the completed FBA report prior to the ARD meeting “contributed to the deepening rift between home and school,” but did not result in harm to the student.

 

 

THE SCHOOL DISTRICT DENIED THE STUDENT FAPE

Case citation:  Student v. Brownsville ISD, Dkt. No. 308-SE-0813 (Hearing Officer Sharon M. Ramage, November 13, 2013).

Summary:   The student resided within the Brownsville Independent School District and had a specific learning disability, as well as problems with decoding skills, sounds, and reading comprehension, among other issues.  While the student used proper grammar, the student’s spelling was poor and the student had issues with math, such as multiplying numbers with more than one digit or doing word problems requiring more than one step.

In an ARD meeting held in August of 2013, the district was unprepared to set IEP goals or revise the student’s Present Levels of Achievement and Academic Functioning (PLAAFP). The ARD Committee developed both reading and math goals for the student, with an Independent Education Evaluation (IEE) provider giving input for each goal in the IEP that was developed. After the meeting, the IEE evaluator met with the parent and the parent’s attorney, because the evaluator did not believe that the goals were specific enough or addressed the student’s needs and weaknesses properly.  The evaluator acknowledged, however, that appropriate changes were recognized and incorporated into the IEP.  The evaluator was not invited to the next ARD Committee meeting, and her advice and input was not sought beforehand to help develop the IEP.  The parents ultimately requested a due process hearing, claiming that the district failed to develop an appropriate IEP in a timely manner and failed to provide FAPE.

Ruling:  The hearing officer held for the student. With respect to the student’s IEP, the hearing officer recognized that the district had not developed measurable annual goals that would meet the student’s deficiencies.  According to the hearing officer, the student’s IEP did not contain specific goals to address the student’s deficits in reading, math and compensatory reading instruction, and was not individualized based on student’s assessment and performance. The record showed that the IEE evaluator identified specific deficiencies in the IEP goals and objectives. According to the evaluator, the district should have implemented reading goals that contained specific objectives for decoding specific consonants and vowels due to the student’s dyslexia and decoding deficits. These types of objectives were part of the dyslexia program used by the district.  The ARD Committee also did not identify specific benchmarks regarding the student’s decoding skills from which to develop the student’s IEP goals.  Instead, the ARD Committee adopted the same goals for basic reading instruction, dyslexia instruction and compensatory education to be in effect for six weeks until the student’s annual ARD Committee meeting.  According to the evaluator, the student could have mastered more objectives in the six-week period, and the goals were therefore not appropriate. She testified further that the student’s math goals did not address deficiencies identified in the PLAAFPs.

The hearing officer next considered whether the district denied the student FAPE by not inviting the IEE evaluator to the ARD meeting, and the hearing officer found for the student. The district was required to include the IEE evaluator pursuant to a previous hearing officer order.  The record showed that the first ARD meeting in which the evaluator was present ended in disagreement.  The hearing officer determined that, by failing to schedule the recessed ARD meeting at the time of the disagreement, the district missed the opportunity to secure the independent evaluator’s participation in the ongoing development of the student’s program.  The district also failed to use the recess as an opportunity to gather additional data, prepare further documentation, and/or obtain additional resources to assist the ARD Committee in reaching mutual agreement.  By failing to invite the independent evaluator to return following the recess, the district did not attempt to develop the program in a collaborative manner by key stakeholders.  The independent evaluator was a necessary ARD Committee member by prior order of the hearing officer, and the district had agreed to pay for her time.  Thus, it was reasonable for the parent to expect the district to invite the evaluator to the ARD Committee meeting.   Had the district properly scheduled the meeting prior to the recess, it would have been able to secure and confirm the evaluator’s ongoing participation. The district’s failure to include the evaluator, seek additional information or resources during the recess, and failure to develop appropriate goals denied the student a FAPE.

Comments: :  Leaders of the ARD Committee meeting should study the “recess” rule at 19 T.A.C. 89.1050(h).  When the ARDC decides to recess due to a disagreement, the members are supposed to agree on the date, time and place when they will reconvene right then, before they leave the table.   Here, that did not happen.    The hearing officer concluded that this was a procedural error that prevented the independent evaluator from attending the meeting and therefore, impeded the parents’ ability to participate.  Furthermore, the hearing officer faulted the district for not conducting any research or gathering more data during the recess, noting that this is “exactly what ARD Committee members are supposed to do during a recess.”  Finally, the hearing officer faulted the district for not coming to the original ARD meeting with draft goals: “Predetermination is never acceptable.  However, reviewing the student’s progress and formulating draft IEP goals is essential to preparation for an ARD meeting.”

 

THE CHARTER SCHOOL COMPLIED WITH THE IDEA AND PROVIDED THE STUDENT FAPE

Case citation:  Studentv. Houston Can Academy Charter School,  Dkt. No. 098-SE-1212 (Hearing Officer Ann V. Lockwood, October 25, 2013).

Summary:  The student was enrolled in the Houston Can Academy Charter School.  The student had a learning disability and a previous history of behavior issues, though at the time the student transferred to the charter school, the student was noted as being a model student. While the student was behind in obtaining certain required credits, the school provided the student an opportunity to make them up in order to be properly classified.

In January of 2012, the mother noted that a re-evaluation of the student would be beneficial. The three-year re-evaluation was not due until March, 2013.   In response to the parent’s request, the school proposed to conduct a Full Individual Evaluation (FIE) in December, 2012.  However, the school did not provide “prior written notice” concerning this decision.  The student’s mother contacted the special education assessment specialist at the beginning of the 2012-13 school year to get a copy of the student’s transcript from the charter school. Receipt of the transcript caused the student’s mother concern because of the student’s academic classification and number of credits. The student was in credit recovery and the principal explained to the mother that following credit recovery, the student would be reclassified.

The mother, nevertheless, removed the student from the school, but formal paperwork was not completed and the student was subsequently subject to truancy provisions under state law. The student’s mother filed a complaint with the Texas Education Agency regarding the truancy charges.  The charter school held an ARD under TEA policy, but the mother failed to attend. TEA accepted the school’s corrective actions. The mother then brought a due process request, for denial of FAPE, failure to identify the student, and failure to give proper notice before conducting an evaluation.

Ruling:  The hearing officer ruled in favor of the charter school on whether the student had been provided FAPE.  The student earned credits and made academic progress. The record showed further that the student was generally well-liked, and any behavior issues were minor.

The hearing officer found insufficient evidence to show that the school failed to properly identify the student with a disability nor conduct a timely evaluation. The student’s eligibility for special education services was determined during the initial transfer ARD and at the subsequent ARD meeting, in reliance on evaluations conducted by the previous school. The student was not yet due for a reevaluation, and there was no evidence that student’s progress warranted reevaluation sooner.

The hearing officer next concluded that the issue of whether the school failed to give parents prior written notice of its refusal to conduct a full FIE in January and instead conduct one in December, was moot. The issue had already been resolved through the TEA complaint process and the charter school had already take approved corrective action.

In addition, the charter school’s failure to provide the requisite prior written notice did not impede the student’s right to FAPE under the IDEA. There was evidence to show that the student was doing well academically and socially. Further, the parent had been active in attending and participating in ARD meetings before the fall of 2012, and the school responded accordingly to concerns that the parent raised.

Finally, the hearing officer denied the parent’s request to offer additional exhibits into the record. The exhibits in question were not necessary, and the student had plenty of time to prepare exhibits in advance. The charter school had the right to object to the submission of this untimely evidence.

 

Child Find

 

DID THE SCHOOL DISTRICT VIOLATE ITS “CHILD FIND” OBLIGATIONS?

Case citation: Student v. Houston ISD, Dkt. No. 306-SE-0813 (Hearing Officer Ann V. Lockwood, November 7, 2013).

Summary:  The student attended school in the Houston Independent School District and was identified as having an emotional disturbance.  The student’s mother wanted the student transferred from a school within the district to a district charter school.  The student’s mother planned to enroll the student at a campus other than the student’s home campus, without first going through the transfer request process. Even though the mother lacked some of the required documentation, the district was willing to make an exception so that the student could begin enrollment right away.

Meanwhile, the student’s three-year reevaluation became overdue.  Attempts to complete the evaluation, however, were delayed because the mother did not provide the district with required sociological information.   The district made multiple attempts to secure sociological information and documentation from the student’s mother.   While the mother tried to provide the requested documentation, the documents were never received. The parent later requested a due process hearing with the main issue being whether the district violated the IDEA’s “child find” requirements.  The parent also complained that the district did not enroll the student at his home campus and refused to let them visit charter schools to determine where they might want to transfer.

Ruling:  The hearing officer ruled in favor of the school district regarding the issue of whether the district failed to enroll the student at the home campus for the current year. While this issue might establish a claim under enrollment provisions of the Education Code, it does not constitute a claim under the IDEA. This issue was not within the jurisdiction of the special education hearing officer.  Regarding whether the parent and student were given the opportunity to visit charter schools to select a campus, the hearing officer held for the school district.  Again, the issue did not constitute a claim under IDEA.

With respect to the parents’ “child find” claim under the IDEA, the hearing officer ruled in favor of the school district. The district initiated the evaluation process when the student arrived to enroll in the school. The district was unable to complete the evaluation because the parent had not provided updated sociological information.  The hearing officer held further that the parents were not entitled to an IEE at the district’s expense. A parent’s right to an IEE can only occur once the district has completed its evaluation and the parent disagrees with the evaluation.  Here, because the parent failed to provide the sociological information, the district could not complete its evaluation.  Thus, the parent did not yet have a right to request an IEE.

Comments:  As this case illustrates, “sociological information” is not just interesting background data.  It is essential in determining whether a student’s academic problems are related to a disability, or some other cause.  Thus the hearing officer concluded that the parents’ failure to provide that information blocked the district from fulfilling its responsibility.

 

THE STUDENT’S DISCIPLINARY PLACEMENT DID NOT VIOLATE DISTRICT’S “CHILD FIND” DUTIES

Case citation:  Studentv. Killeen ISD, Dkt. 058-SE-1013 (Hearing Officer Lucius D. Bunton, December 2, 2013).

Summary:  The student attended school in Killeen Independent School District, and was identified as “at risk” on various occasions.  The student maintained a B to C average, and passed all classes and state examinations, with the exception of the state assessment for math. Following concerns about the student’s behavior, the district had the student sign a behavior contract in October 2013.  Under the terms of the behavior contract, the student was subject to the Student Code of Conduct.

After signing the behavior contract, the student continued to act out and was assigned to a disciplinary alternative education placement (DAEP) for forty-five days. There was no reason to suspect that the student was eligible for special education services at that time, and the parent had never previously asked for an assessment.  The issue in dispute was whether the district should have evaluated the student for special education before placing the student at the DAEP.

Ruling:  The hearing officer ruled in favor of the school district. According to the hearing officer, a student who has not been identified as eligible for special education and related services and who has violated a district’s student code of conduct, does not have the protections afforded under the IDEA unless the district had knowledge that the student was a student with a disability before the behavior that triggered the disciplinary action.

Further, under IDEA regulations, a district should be deemed to have known of possible eligibility if (1) the parent expressed concern in writing to supervisory administrative personnel, or a teacher of the student, that the student needs special education and related services; (2) the parent requested an evaluation of the student; or (3) a teacher of the student or other district personnel expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education or other supervisory personnel.  The record did not support any of those three elements, according to the hearing officer.  Therefore, the parent failed to demonstrate a “child find” violation under the IDEA or its regulations when it placed the student in the DAEP.

Comments:  This is one of the few cases that addresses the “shoulda known” kids—those students who are not identified under IDEA, but are entitled to IDEA procedural protections because of what the school “shoulda known.”   The student was “at risk,” had failed a math assessment, and had enough behavior problems to warrant a behavior contract. But the hearing officer concluded that none of that was sufficient to put the student into the “shoulda known” category. Thus he was subject to the same disciplinary penalties as general education students.