THE STUDENT DID NOT QUALIFY FOR SPECIAL EDUCATION AND RELATED SERVICES
Case citation: Studentv. Grapevine-Colleyville, Dkt. No. 074-SE-1113 (Hearing Officer Lucius Bunton March 31, 2014)
Summary: The student attended school in the Grapevine-Colleyville Independent School District and had been diagnosed with a chronic disease that interfered with his ability to attend school regularly. As a result, at times the student received home-bound services. The student was placed in the general education homebound program and received accommodations through Section 504 of the Rehabilitation Act of 1973. The record showed that the student passed the reading and math assessments in the Texas Assessment of Knowledge and Skills (TAKS). Assessments also showed that the student had average cognitive abilities, average verbal and nonverbal cognitive abilities, and above average quantitative abilities. The student also received straight A’s in his educational program.
The homebound program only offered four hours of instruction each week – in placements for homebound under either special education or general education – and the parents believed that four hours was insufficient. In the spring of 2013, the student passed the math and reading portions of the State of Texas Assessments of Academic Readiness (STAAR), and the student did well on the Measurement of Academic Progress (MAP), according to district personnel.
Sometime later, the student’s mother advised the district that the student was having surgery and believed the student would return to school within a week of the surgery. No information from the parent was provided from a physician that homebound services were needed. However, following the surgery the parent requested homebound services.
At the start of the 2013-2014 school year, the district held a Section 504 committee meeting. The student’s mother wanted the district to advise all of the student’s teachers of the student’s Section 504 plan – and specifically, the accommodation that the student could go to the restroom at any time. The student was allowed to leave for the restroom at any time and provided other accommodations such as extended time for completion of assignments, frequent breaks in school, access to the school nurse, limitations on physical activities, access to water and snacks, and other accommodations.
Meanwhile, the parents asked that the district consider placing the student in special education. The parents, however, seemed to indicate that they did not want the student to undergo a special education evaluation. The parent later requested a due process hearing and claimed that they had requested a special education evaluation.
The due process hearing request claimed that the district violated its child find duties under the IDEA and failed to provide timely prior written notice required for the parents under IDEA. The parent claimed that the student exhibited an educational need for special education services and experienced problems with homebound services. The parent also raised concerns about results of standardized testing and the meaning of those results, complaints about qualifications of teachers, and possible psychological harm to the student.
Ruling: The hearing officer ruled in favor of the district on each of the parents’ claims. The main issues in this case were whether the district failed to timely assess and identify the student as one who is entitled to special education and placement and whether the student should be identified as such a student. At the hearing, the parent stated that they wanted the student to be prepared for college and graduate with a recommended diploma.
According to the hearing officer, the district is not responsible under IDEA to make the student ready for college education. The student simply did not demonstrate the need for a special education evaluation. The evidence also did not prove special education eligibility for the student.
In addition, the student was not entitled under the law to determine the qualifications for homebound teachers other than those already established under the law. The parents also provided no proof that the student was entitled to compensatory services or required adaptive instructional techniques, which could be required under IDEA.
While the student’s medical condition resulted in a number of problems that may have qualified under the classification of “other health impaired,” the student did not exhibit a need for special education and related services. The student was successful academically and the student did not need specially designed instruction as a special education student. Thus, the hearing officer determined that the district did not violate its child find obligations and the student did not qualify for special education and related services.
Comments: The hearing officer noted that the student’s medical issues suggested that the student might have an “other health impairment” (OHI) condition, but that this did not make the student eligible for special education. The parents failed to prove that the medical condition “adversely affects the student’s educational performance.” This was a smart student with supportive parents, thus resulting in no “need” for special education. Key Quote: “The student’s own innate abilities—re-enforced by the student’s parents—have shown that the student does not need specially designed instruction as a special education student as contemplated under IDEA.”
WAS THE STUDENT’S CONDUCT A MANIFESTATION OF THE STUDENT’S DISABILITY?
Case citation: Student v. West Orange Cove CISD, Dkt. No. 120-SE-0114 (Hearing Officer Sharon Ramage April 9, 2014)
Summary: The student attended school in the West Orange Cove Consolidated Independent School District and qualified for special education and related services as a student with autism and an emotional disturbance. The student received services in the general education setting. The student’s emotional disturbance was based upon a general pervasive mood of unhappiness or depression, an inability to build or maintain satisfactory interpersonal relationships with peers and/or teachers, and inappropriate types of behavior or feelings under normal circumstances. The student received a diagnosis of Bi-Polar Disorder and Attention Deficit Hyperactivity Disorder (ADHD). However, the district’s assessment was not current, due in part to the parent’s revocation of consent. The district filed a counterclaim in the underlying due process action seeking an order to override the lack of consent.
According to the latest psychological evaluation completed in July, 2011, the student was diagnosed with Asperger’s Disorder and ADHD-Combined Type. The report identified hyperactivity, impulsivity and anger problems as issues to be addressed. The psychologist reported that the student had limited coping skills and significant stress overload. As a consequence, the student was at significant risk of overt anxiety, tension, nervousness, irritability, loss of self-control and impulsive behavior. Additionally, the student demonstrated a tendency to repress angry feelings and then have explosive anger, as well as rigid thought processes. According to the psychologist, the student worked hard at containing emotions to the point of interfering with the student’s ability to exercise good judgment and limit self-control. Notwithstanding these observations, the psychologist also acknowledged that the student did have a sense of responsibility for the student’s actions.
A Functional Behavior Assessment (FBA) conducted in April of 2013, indicated that the student was physically and verbally aggressive, disruptive, and insubordinate and had learned to receive attention from adults through acting-out behaviors or engaged in the behaviors to avoid tasks. The adult attention then negatively reinforced the behaviors. The evaluator recommended a crisis plan for the student to be implemented if the behaviors escalated to an unmanageable condition. Under those circumstances, the student would be moved to a calm, less stimulating environment. The student then would be moved to the student’s regular schedule or other placement depending on the infraction. The evaluator recommended the development of a BIP as well as social skills training. The evaluator specifically recommended reduction of social interactions in which the student was likely to become aggressive, as well as social skills training and counseling.
At some point during the 2013-14 school year, the student engaged in an altercation that involved striking the student’s teacher. The teacher experienced redness, swelling, and pain and missed one day of work. The assistant principal investigated and recommended the student’s placement in the DAEP for a minimum of thirty days and the principal upheld the recommendation. The student’s ARD conducted a manifestation determination review. The district members of the ARD Committee determined that the student’s conduct was not a manifestation of student’s disability and required mandatory DAEP placement. The district timely notified the parents of its intent to place the student in the DAEP for a minimum of thirty days.
The student’s parents requested a due process hearing to challenge the disciplinary placement. The issues were whether the student’s conduct was a manifestation of a disability; and, if so, whether the student inflicted serious bodily injury upon another person while at school, and therefore, special circumstances existed authorizing placement in the DAEP for a period not to exceed 45 school days.
Ruling: The hearing officer concluded that the student’s conduct was a manifestation of the student’s disability and the student did not inflict serious bodily injury on the teacher. According to the hearing officer, the student had disabilities that manifested themselves in aggressive behavior, a lack of coping skills, poor self-control, and anger. The student’s disability categories were autism and emotional disturbance. In addition, previous evaluators diagnosed the student with Bi-Polar Disorder, ADHD, and Autism Spectrum Disorder (Asperger’s) and identified certain accompanying behavioral characteristics as impeding the student’s performance, including impulsivity, anger, defiance, verbal and physical aggression, difficulty in maintaining interpersonal relationships, low frustration tolerance, anxiety, over-sensitivity to criticism leading to anger outbursts, frequent tantrums, becoming easily overwhelmed, and rigid thought processes. In addition, the student’s discipline referral record and evaluative history were replete with references of physical aggression toward others and insubordination. The hearing officer concluded that the student’s conduct, when placed in context of student’s aggressive history and the events in the classroom, was caused by and had a direct and substantial relationship to student’s disability.
The district argued that special circumstances existed that warranted an emergency removal to a DAEP even if the conduct in question was a manifestation of the student’s disability, because the student inflicted “serious bodily injury” on the teacher. “Serious bodily injury” is defined as bodily injury which involves (1) substantial risk of death; (2) extreme physical pain; (3) protracted and obvious disfigurement; or (4) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. In this case, the district maintained that the teacher experienced extreme physical pain, as well as serious mental, emotional, and psychological trauma due to the student’s actions. The teacher reportedly suffered a “sprain,” missed one day of work, and reported redness and soreness. Nevertheless, she was able to communicate what had occurred and returned to her classroom immediately after the incident.
According to the hearing officer, “extreme pain” must be analyzed within the context of the remainder of the definition, including protracted and obvious disfigurement, risk of death, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. In this case, the teacher experienced pain, or bodily injury. However, there was no evidence that her injury rose to the level of serious bodily injury when considered in light of the entire definition. The district also argued that the teacher suffered psychological trauma as a justification for determining the student caused serious bodily injury. While it is apparent the event was disconcerting to the teacher at the time, and perhaps for a time thereafter, the teacher did not appear to have “protracted” loss of a mental faculty in that she returned to her duties in the classroom after missing one day of work and did not appear to be under any continued stress from the event during the hearing. Therefore, emergency removal to the DAEP irrespective of the manifestation determination was not warranted. The student was allowed to return to the student’s regular placement.
Comments: Students can assault teachers and cause physical injuries without inflicting a “serious” bodily injury. This is a good example. Since the hearing officer held that the injury was not “serious,” the student’s placement in a DAEP is contingent on the manifestation determination. Here, the hearing officer holds that the assault was a direct cause of the student’s disability, and thus, DAEP is not an option.
THE DISTRICT PROVIDED THE STUDENT FAPE
Case citation: Student v. Manor ISD, Dkt. No. 130-SE-0213 (Hearing Officer Sharon Ramage February 19, 2014).
Summary: The student attended school in the Manor Independent School District and qualified for special education and related services as a student with intellectual disabilities and autism. The student exhibited self-injurious and aggressive behaviors toward students and staff. The student also had no functional system of communication. After several staff members had been injured, the district consulted with a Board Certified Behavior Specialist (BCBA) to complete a functional behavioral assessment (FBA). The BCBA made classroom recommendations to assist the student and de-escalate the behaviors. The BCBA recommended use of a picture exchange system and strategies to prevent defiant and self-injurious behaviors.
During the 2010-11 and 2011-12 school years, the student’s behavior continued. Staff implemented restraint techniques on a number of occasions and staff reported no predictable pattern to the student’s behavior. After an event that required the student’s absence for two weeks, the district increased support for the student in the classroom. Between February and May of 2012, a BCBA and two aides remained with the student at all times, with additional district staff having access to the classroom.
Two Admission, Review, and Dismissal (ARD) Committee meetings were held on April 25, 2012, and May 30, 2012. The record showed that the parent fully participated in the meetings, with the assistance of an interpreter and an advocate. The district agreed to fund an independent educational evaluation (IEE) at the parent’s request, but the parent later notified the district that they had moved to a neighboring district and the district assisted with the student’s transfer. The parent later requested a due process hearing, complaining that the district had denied the student a free appropriate public education (FAPE).
Ruling: The hearing officer denied all relief requested by the parent. The main issue was whether the district denied the student a FAPE during a relatively short period of time from February 15, 2012 through May 30, 2012. The hearing officer held that any claims arising before February 15, 2012 were barred by the one-year statute of limitations that applies to claims brought under the Individuals with Disabilities Education Act (IDEA).
According to the hearing officer, the district provided an appropriate educational program for the student. The student’s program was based on the student’s assessment and performance, provided in a collaborative and coordinated manner, and addressed behavior that impeded the student’s learning. The student began to show progress under the program, prior to the student’s transfer to another school district. In addition, the student’s program was provided in the least restrictive environment. The student’s aggressive and self-injurious behaviors required a restrictive setting because the student’s behaviors impeded the student’s learning and that of others.
The parent claimed that the district was excessive in its use of restraint of the child. However, the record showed that the use of restraint decreased over time, as additional behavioral supports and strategies were used in the classroom. Further any restraints that were used were necessary to address the student’s behaviors, which at times posed an imminent threat of physical harm to the student and others.
The hearing officer also concluded that the parent meaningfully participated in ARD meetings and that it was not required for the student to attend the meetings. The district provided the parent with a language interpreter and the parent was accompanied by an advocate at the ARD meetings in question. Recordings of the ARD meetings demonstrated that the parent participated in the discussions of the student’s education program. The student did not have the capacity to participate in ARD meetings. The parent simply failed to demonstrate any procedural errors on the part of the district or actions that denied her meaningful participation in the ARD process. Thus, the district provided the student FAPE.
Comments: As this decision illustrates, school districts have a duty to serve students who present significant challenges. The hearing officer noted that “the program was not perfect” but the student “presented unique and complex behaviors that challenged multiple school districts.” Looking at the situation as a whole, the district provided FAPE.