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FAPE

THE PARENT DID NOT DEMONSTRATE A DENIAL OF FAPE

Case citation:  Student v. Killeen ISD, Dkt. No. 241-SE-0613 (Hearing Officer Brenda Rudd, January 20, 2014).

Summary: The student attended school in the Killeen Independent School District and received special education and related services under the classifications of emotional disturbance and “other health impaired.”  In the fall of 2012, the parent gave consent for a full and individual evaluation and a functional behavior assessment (FBA).  At the time, the student was passing all but one class and the failing grades resulted from late and incomplete assignments.

In the spring of 2013, the student was failing three classes and did not meet the performance standards for the Texas statewide assessment.   The district provided the student intense remediation along with tutoring in math and reading.  An ARD meeting convened on May 3, 2013 to review results of district’s evaluations. The student qualified as a child with a specific learning disability in the areas of math calculation, math reasoning, reading comprehension, and listening comprehension.   However, the student no longer qualified under the emotional disturbance classification. District committee members recommended the student’s placement in resource class for math and reading.  The district requested to speak with the student’s physician to determine whether health concerns were the cause of the student’s attendance problems, but the parent did not consent.   The ARD Committee offered other accommodations, but the meeting ended in disagreement.

The parent did not attend the reconvened ARD meeting, at which the ARD reviewed and updated Student’s present levels of academic performance, including new information that was gathered during the 10-day recess. The Committee revised goals and short-term objectives based on the additional information. Accommodations were reviewed and updated.  The Committee discussed each of the  parent’s remaining requests for accommodations, accepted some, and declined others as not appropriate for the student to receive a free appropriate public education. The student’s placement was changed to resource class for reading and math.  This change in placement moved the student to the Minimum High School Plan.

The parent later requested that the district reconvene the meeting, but the district refused.  The parent also requested ARD meetings in July, August, and September, 2013.  In lieu of convening a meeting, the district requested assistance through the Texas Education Agency (“TEA”) mediation process.   The district also refused the parent’s request for an occupational therapy (“OT”) evaluation.

Following the student’s annual ARD meeting in November, 2013, the student’s disability remained as a specific learning disability in the areas of listening and reading comprehension, and mathematics calculation and problem solving. The committee considered OHI information that was not signed by a medical doctor. The committee developed a goal in general academics due to the student’s history of failure to turn in assignments. The student was placed in resource classes for reading and math, 50 minutes each day.  In addition, the student was placed in inclusion class for English Language Arts, Science and Social Studies for 102 minutes each week and content mastery class for 30 minutes weekly. The committee determined that the student would participate in the state examination called the STAAR Modified exam. The ARD Committee also adopted accommodations including small groups, and preferential seating.  The parent disagreed with the ARD committee recommendations.  The parent then pursued the request for a due process hearing challenging the district’s decisions concerning the student’s assessments, eligibility, IEP, and placement.

Ruling:  The hearing officer determined that the district provided the student with FAPE and denied all relief requested by the parent.   The district made proper eligibility determinations. The district properly rejected a private evaluation diagnosing the student with ADHD, because the evaluator was not a licensed specialist in school psychology.  There was no evidence that the district refused to fund an IEE.  Instead, after much effort, the parent located a willing evaluator who later found it difficult to work with the parent and ultimately withdrew from the evaluation.

Contrary to the parent’s contentions, the district developed a proper FIE for the student.  While the report was corrected due to a typographical error, and there was no evidence of falsified facts in the FIE.   The hearing officer also found no errors in the handling of ARD Committee meetings. The district did not deliberately delay ARD meetings or deny parent’s the ability to participate in the meetings.  The parent also failed to offer evidence to support her claim that the district predetermined its decisions or that its decisions were inappropriate.

Ultimately the hearing officer concluded that the district provided the student with FAPE.  During the major portion of the applicable timeframe, the student’s program was based on a 2010 FIE.  The assessment complied with the requirements of IDEA. A new FIE was conducted during the spring of 2013 and complied with the requirements of IDEA. The evidence supported a finding that the student’s program was reasonably calculated to enable the child to receive educational benefits, and was individualized on the basis of assessments and performance.  The hearing officer denied all relief requested by the parent.

Comments:  Special education directors take note: the neuropsychologist did a neuropsychological, but its conclusion that the student had ADHD was rejected because he was not an LSSP. And the OHI designation due to ADHD was rejected because he was not a medical doctor.  As the hearing officer notes, “Texas law requires that the multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student’s eligibility based on other health impairment must include a licensed physician.”

 

Eligibility

WAS THE STUDENT ELIGIBLE FOR SPECIAL EDUCATION SERVICES?

Case citation:  Student v. Bishop ISD, Dkt. No. 147-SE-0313 (Hearing Officer Lynn E. Rubinett, January 14, 2014).

Summary:  Prior to enrolling within the district, the student had received special education services for a speech impairment in the student’s early education, but was later dismissed from speech therapy and found ineligible for services.   The student had been diagnosed with Bipolar Disorder and was served in another school district under Section 504 due to Attention Deficit Hyperactivity Disorder (ADHD). During the 2011-12 school year, the student experienced truancy problems and failed all of his classes.  Meanwhile, a private doctor diagnosed the student with Depressive Disorder NOS, ADHD, and Anxiety Disorder, NOS.

The student enrolled in Bishop Independent School District in November of 2012. According to the parent, she had a casual conversation of a “joking” nature with the registrar, during which the parent stated that the student took medication and was a patient.  On enrollment forms provided to the district, the parent did not fill out a section that requested information on whether the student had received special education or Section 504 services. The registrar did not follow up with the parent concerning that requested information.  The registrar requested records from the student’s prior school district, but the district could not immediately fulfill the request because their offices were under construction. The district did not later follow up on the request.

Meanwhile, the student began attending school in the Bishop ISD, but was suspended for three days shortly after enrollment due to an incident at school.  The student also was assigned to a disciplinary alternative education placement (DAEP) for thirty days.  The student did not return to the district and the parent objected to the DAEP placement.  The parent did not disclose the student’s medical or psychological history, or the student’s most recent private diagnoses for Post Traumatic Stress Disorder, ADHD, Anxiety, and Depression.  Meanwhile, a misunderstanding took place between the parent and the district on whether the student would be withdrawn from the district.  The confusion over the student’s enrollment stemmed from whether he would be placed in the DAEP upon return.

The student did not return to school and the parent did not fill out enrollment forms for the student until March of 2013.  In addition, Bishop ISD did not receive records from the student’s prior district until after April 2013.  In March of 2013, the parent requested a due process hearing, alleging that the student was eligible for special education and related services, that the district improperly decided to place him at the DAEP, and refused to reenroll the student or otherwise serve the student after the December 2012 incident.

Ruling:  The hearing officer held that the district denied the student a free appropriate public education (FAPE) by failing to timely evaluate and identify the student as eligible for special education and failed to conduct a psychological evaluation as part of its full and individual evaluation (FIE).   The district argued that it had no reason to suspect that the student had a disability prior to the filing of the due process request because the parent did not indicate that the student had received special services at the prior school district and did not inform the district of the student’s various diagnoses.   The record showed that, following the December 2012 disciplinary incident, the district and the parent focused primarily on the DAEP placement and they “failed to collaborate effectively and exchange information that was necessary to ensure Student received the services student needed.”  While both parties played a role in the district’s failure to obtain records from the student’s prior school district in a timely manner, the hearing officer determined that the district did not fulfill its child-find obligations.  The district failed to determine at enrollment whether the student had previously received special education services or Section 504 services and failed to timely obtain records from the prior district.

The hearing officer also determined that the district should have included a psychological evaluation in the student’s FIE.  By the time the district conducted the FIE, it had information that a psychological evaluation was necessary.  The district claimed that it did not have consent to conduct a psychological, but the hearing officer held that it did.      Even if the district did not have the required consent, as it claimed, it did not make a reasonable effort to obtain consent.  The hearing officer concluded that the district’s FIE did not evaluate the student in all areas of suspected disability and was not sufficiently comprehensive to identify all of the student’s needs.   The hearing officer ordered the district to provide the student compensatory services and a psychological evaluation.

Comments: The hearing officer’s comments about the psychological would be useful reading for LSSPs and diagnosticians. The district argued that it asked for consent and did not get it. But the hearing officer noted that the “Notice of Assessment” informed the parent that a psychological would be included in the testing, and the parent gave consent based on that Notice. The hearing officer further held that, even if that “consent” was deemed inadequate, the district had enough information about the student’s situation that it should have pushed the issue harder.

 

THE DISTRICT DID NOT TIMELY ASSESS THE STUDENT

Case citation:  Student v. Forney ISD, Dkt. No. 066-SE-1013 (Hearing Officer Ann Vevier Lockwood, January 24, 2014).

Summary:  When the student enrolled in the Forney Independent School District, the student had been diagnosed with ADHD and asthma.  The student had been eligible for special education services as a student with a speech impairment but was later dismissed from special education and received accommodations through Section 504. Shortly after enrolling in the district, teachers reported that the student was not completing work or turning it in, was distracted in class and did not stay on task, and refused to show work in math.  The parents submitted a request for an FIE in February of 2013, but a Student Support Team refused and instead recommended Section 504 services.

Nevertheless, the student continued to have difficulties and was failing and did not pass portions of the STAAR exam.  The district had the opportunity to initiate a special education referral but failed to do so.  The parent again requested an FIE in June of 2013.  While the district agreed to provide one, it was not completed until September 17, 2013.   The FIE concluded that the student did not meet eligibility criteria for special education as a student with autism, a learning disability, or in need of occupational therapy or assistive technology. The ARD meeting that reviewed the FIE ended in disagreement and the parent requested an independent educational evaluation, which the district refused. The mother then sought a private IEE.  The IEE evaluator was critical of the district’s interpretation of some of the FIE data and made a number of recommendations, including speech therapy. The parent requested a due process hearing contesting the district’s FIE, failure to provide an IEE at district expense, and eligibility determinations.  The parent also claimed that the district failed to adequately address bullying that the student had endured.

Ruling:  The hearing officer held that the district did not timely conduct an FIE for the student and should have found the student eligible under the OHI category.  Otherwise, the hearing officer ruled in favor of the district.  According to the hearing officer, the district failed to conduct timely evaluations of student when the student enrolled in the district and struggled with academics upon student’s return. The record showed that by the end of the second six weeks grading period the student failed three core academic classes and teachers noted that the student had problems turning work in, missed assignments, and exhibited lack of motivation.  By end of the semester the student’s semester grades were poor in two core academic classes and the student barely passed two other core academic classes.  The student also failed portions of the STAAR test administered in late spring of the same semester.   Thus, the district should have initiated a referral for special education at least by end of the semester, if not before.   Instead, parent’s request for an FIE in mid-June was finally considered and agreed to in July and the FIE was not completed until mid-September.

The hearing officer determined, however, that the district conducted appropriate evaluations in all areas of suspected disability. While there were some weaknesses in some components of the way information was collected in the FIE, the credible evidence showed that the school district met all regulatory requirements in conducting an appropriate FIE.

The hearing officer also rejected the parent’s claim that the district failed to provide the student with a FAPE by failing to adequately address the student’s safety as a victim of bullying at school.  Although there was some evidence that the student was a victim of bullying and mistreatment on occasion by peers, the student was not denied access to the student’s educational program. The parent also failed to show that bullying or mistreatment by peers continued the next semester.

The hearing officer determined that the student met criteria for special education services as a student with OHI, contrary to the district’s conclusions.  The record established the student’s long-standing diagnosis of ADHD and asthma and educational need for special education services.  According to the hearing officer, the student’s Section 504 interventions were not successful. Further, an OHI form signed by the student’s physician established that the student met criteria under the IDEA as a student with OHI eligibility for special education services.  Although the parent refused to sign consent for an updated OHI form from the student’s physician, the district could have relied on the previous OHI form and all other available information, including results of the FIE, to reach determination of OHI eligibility.

Comments:  The only OHI form the district had was dated 2009—four years prior to the eligibility determination, and well outside of the three-year window for “timely” evaluations. Moreover, the hearing officer found the parent to be “unreasonable” in failing to provide an update from the doctor. Despite that, the hearing officer concludes here that the district could have, and should have, declared the student eligible under the OHI category. The hearing officer noted that there was “no real dispute between the parties” about the student’s ADHD and asthma, and thus the OHI form was “somewhat of a formality.” This ruling is couched in terms of “the unique circumstances of this case,” which we take to mean it is generally not advisable to rely on a four-year-old report.

 

THE STUDENT QUALIFIED FOR SPECIAL EDUCATION AND RELATED SERVICES

Case citation: Student v. Mesquite ISD, Dkt. No. 041-SE-1013 (Hearing Officer Sharon M. Ramage, February 4, 2014).

Summary:  The student attended school in the Mesquite Independent School District and was eligible for special education and related services as a student with a specific learning disability. On January 30, 2012, the district completed a Full and Individual Evaluation (FIE) for the student, and the multidisciplinary team determined that the student was no longer eligible for special education and related services.  The parent requested an Independent Educational Evaluation (IEE) at public expense, and the district agreed to fund the IEE, and continued to provide special education services while the IEE was pending

Following the IEE, the student’s ARD Committee developed an IEP in October 2012 that addressed the student’s academic weaknesses and included accommodations to address the student’s ADHD symptoms.   The ARD Committee determined that the student would be placed in the general education setting, with a Resource math class 30 minutes, two times per week, and Content Mastery support in both math and science for 45 minutes per week.

The student did not perform satisfactorily on the 2013 Math STAAR assessment.   On April 25, 2013, the ARD Committee amended the student’s IEP to include accelerated math instruction, with 45 minutes per day in math tutoring to be provided partially in a group setting in the general education classroom and 30 minutes per day in the content mastery classroom.  The district also provided accelerated instruction for the student during the summer of 2013. The acceleration program is required for all students who have not been successful on the STAAR test and is not specifically a special education program.

The ARD Committee developed the student’s annual IEP in October of 2013.  The student’s IEP provided for 60 minutes per week Resource math, 45 minutes per week Content Mastery support in math, as well as 60 minutes per week Inclusion Math. The parent disagreed with the school members of the ARD Committee due to the identification of the student’s specific learning disability. The parent requested specialized instruction and services without the label or identification of the student as one who needs special education and related services.   The parent later requested a due process hearing complaining that the student should not be identified as a student in need of special education.

Ruling:  The hearing officer concluded that, based on a preponderance of the evidence, the student demonstrated a need for special education and related services due to a Specific Learning Disability in Math Problem Solving and Written Expression.  The parent first complained that the district improperly identified the student as learning disabled, and argued that the student in fact has no disability at all.  Additionally, the parent alleged that the district improperly relied on the IEE in identifying the student’s specific learning disability.

According to the hearing officer, the district conducted an FIE which initially resulted in a determination that the student was not eligible for special education and related services.  The parent requested an IEE at public expense, which the district agreed to fund.  The IEE evaluator administered different assessment instruments relevant to classroom performance and identified the student’s deficits in fluid reasoning, which correlated with specific learning disabilities.  The student had previously demonstrated weaknesses in math and written expression, areas specifically affected by deficits in fluid reasoning.   Pursuant to 34 CFR § 502(c), the district considered the IEE, as well as a variety of assessment tools and strategies to gather relevant information to assist the ARD Committee in determining the student’s eligibility status.   Contrary to the parent’s assertions, the ARD Committee did not rely solely on the IEE in determining eligibility and the determinations concerning the student’s eligibility were proper. The ARD Committee, considering all of the data, properly determined the student had a specific learning disability in math problem solving and written expression.  In addition, the district presented evidence that because of the student’s disability, the student needed special education and related services.

The ARD Committee also addressed the student’s needs related to ADHD symptoms. The parent provided the district with information regarding the student’s ADHD diagnosis from the student’s physician that noted the student’s ADHD symptoms interfered with the student’s ability to stay on task and complete assignments.  This information was consistent with the findings in the IEE.   When the student’s physician failed to return the OHI report to the ARD Committee, precluding a finding of OHI eligibility, the ARD Committee nevertheless addressed the student’s attention deficit-related needs by adopting accommodations in the classroom.  The accommodations adopted by the district were consistent with the recommendations of the independent evaluator. Although the student was not identified as a student with OHI, it was appropriate for the ARD Committee to address the student’s attention related deficits in the IEP.

The district developed the student’s program in a collaborative manner by reviewing its own FIE as well as data from the IEE. Based on the totality of the evidence, the student’s IEP was appropriate and administered in the least restrictive environment.  According to the student’s teachers, the student required the additional content mastery and resource support in math to be successful.  Both teachers testified that student required more repetition and assistance than the student would receive in the general education classroom.  The student received appropriate special education and related services in the least restrictive environment.  Thus, the hearing officer denied all relief requested by the parent.

Comments:  This is a strange case. The hearing officer notes that the parent’s position is “that student should not be eligible for special education services at all.” As the hearing officer notes, the parent could revoke consent for special education services at any time, but had not done so. Apparently the parent wanted the services, but not the label, but the two go together.

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