SPECIAL EDUCATION & DISABILITY LAW

Stay-Put

WAS THE CHARTER SCHOOL REQUIRED TO RETAIN THE STUDENT PENDING THE DUE PROCESS HEARING?

Case citation:   SeashoreCharterSchoolsv. E.B., 2014 WL 4364863 (S.D. Tex. 2014) (unpublished).

Summary:  E.B. was a fifteen–year–old male student who has been diagnosed with severe autism, communication and cognitive delays, and who demonstrated unpredictable behavioral issues. He attended school at Seashore Charter Schools, a facility designed to serve students kindergarten through eighth grade.  While at Seashore, despite always being accompanied by a teacher or an aide, E.B. assaulted at least one student, that student’s parent, and his own teacher or aide. He had bit, leaving substantial teeth marks, scratched, grabbed, hit, and had pulled out a chunk of hair. He also engaged in self-injury.  In addition, E.B. experienced substantial growth with puberty and had become increasingly difficult to control among a student population that is younger and smaller than he.

The teacher who had been working as the special education teacher for Seashore resigned from that position. After Seashore could not find a suitable replacement teacher, a behavioral specialist, who had worked with E.B. and had special education credentials, rearranged her private clinic practice to finish out the school year with E.B. That teacher, however, left Seashore. Despite efforts to secure a new special education teacher to work with E.B., Seashore was unable to find one.

Flour Bluff High School (FBHS) is the public school to which E.B. was assigned based upon his residence.   FBHS had an equivalent self-contained classroom for students with similar educational challenges as E.B. FBHS was ready, willing, and able to comply with all aspects of E.B.’s Individual Educational Plan (IEP) and Behavioral Intervention Plan (BIP).  After disputes arose over E.B.’s placement and educational program, the school and E.B. became engaged in an administrative special education due process hearing.  While that was pending, Seashore sought an injunction, requesting an order that E.B. not be required to attend Seashore, and that the IDEA’s “stay put” provision allow him to attend school at FBHS.

Ruling:  The trial court granted the injunction.  To be entitled to a preliminary injunction, the applicant must show (1) a substantial likelihood that it will prevail on the merits; (2) a substantial threat that it will suffer irreparable injury if the injunction is not granted; (3) a substantial injury outweighs the threatened harm to the party whom it seeks to enjoin; and (4) granting the preliminary injunction will not disserve the public interest.   Seashore met each of those requirements.

The IDEA’s “stay-put” provision states that “during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under § 300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.”  According to the trial court, this provision does not require that the student remain at the same school, only that the student be provided the same “placement.”

While E.B.’s mother criticized the FBHS facility and program, she admitted that she had not taken advantage of opportunities that FBHS provided to visit the facility and observe the program. In addition, without an appropriate teacher, homebound education was not a practical alternative. The parties agreed that homebound education would be a step backward for E.B.’s education and development. The detrimental impact of homebound education was described as likely to cause regression on issues of both aggression and social gains E.B. had made in past years.

According to the trial court, Seashore would likely suffer irreparable injury if an injunction was not granted. The charter school served students from kindergarten to eighth grade. E.B. was about to turn sixteen years old and had already been retained one year at Seashore. Due to the student’s behavioral challenges and the younger ages of the students at Seashore, the trial court determined that E.B. posed a substantial risk of harm to the other students and staff, with or without the staff with credentials necessary to address E.B.’s issues.

On the other hand, E.B. would benefit from an age appropriate placement at the Flour Bluff High School. It was the least restrictive environment that would provide him with the services outlined in his current IEP with age appropriate peers. Finally, the granting of this preliminary injunction would not disserve the public interest since “the appropriate placement of a student in a setting required by law only fosters the public interest, which inures to the benefit of the other students, staff members, the community in general, and, most importantly, E.B.”  The trial court therefore concluded that E.B.’s stay-put placement should be at FBHS.

Comments: According to the trial court, stay-put does not require the same exact setting or school, so long at the student’s “placement” as established by the individualized education program is honored.  The evidence strongly suggested that Seashore no longer offered an appropriate placement for E.B. That, combined with the FBHS’s ability to serve E.B., resulted in the stay-put ruling.

FAPE

THE DISTRICT PROVIDED THE STUDENT FAPE

Case citation:  Student v. Lewisville ISD, 039-SE-1013 (Hearing Officer Mary Carolyn Carmichael April 10, 2014).

Summary:  The student attended school in the Lewisville Independent School District and qualified for special education and related services as a student with autism and a speech impairment. The student received grade-level instruction and attended primarily general education classes.  At the beginning of the school year, the student was tested for regression from the summer break, but no marked regression was found.  The student also exhibited increased social interaction with his peers.

The district held numerous multiple-day Admission, Review, and Dismissal (ARD) Committee meetings for the student to develop, revise, and review the student’s individualized education program (IEP) based on various assessments and the student’s performance data.  Nevertheless, the parent ultimately became dissatisfied with the program provided by the district and unilaterally withdrew the student.  The parent filed a request for a due process hearing, seeking reimbursement for private services and a private placement.

Ruling:  The hearing officer determined that the district had provided the student with a free appropriate public education (FAPE) and denied all relief requested by the parent.  According to the hearing officer, the district worked with the parent throughout the course of the student’s education in the district. The district included the parent at all junctures and included private service provider data and input for multi-day ARD Committee meetings for review and development of measurable goals and objectives.  The district reviewed assessment data, the student’s accommodations needs, and related services needs, as well.   In sum, the district went to great lengths to address the student’s unique academic and non-academic needs.

The district provided the student with an educational program that successfully addressed the student’s academic and behavioral deficits within the predominantly general education setting.  The student performed academically on grade level and showed behavioral progress.  The parent did not meet her burden to demonstrate that the district’s program was inappropriate or that she was entitled to reimbursement for the costs of private services or a private placement.  The hearing officer held that the district provided the student with FAPE and denied all requested relief.

DID THE DISTRICT PROPERLY CHANGE THE STUDENT’S ELIGIBILITY?

Case citation:  Student v. Canyon ISD, Dkt. No. 080-SE-1113 (Hearing Officer Brenda Rudd April 21, 2014).

Summary:  The student attended school in the Canyon Independent School District and had a history of deficits in cognitive and academic functioning.  The student had been diagnosed with attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder, separation anxiety disorder, pervasive developmental disorder, mixed expressive/receptive language disorder, dysgraphia, and borderline intellectual functioning.  At a prior school district, the student had been identified as eligible for special education services as a student with autism, mainly at the request of the parent.  That school district later changed the student’s classification as a student with an emotional disturbance and speech impairment.  When the student enrolled in Canyon ISD, the student’s ARD Committee reviewed the student’s prior assessments and classified him under the emotional disturbance and speech impairment categories.  The parent disagreed.  When the ARD meeting reconvened, the district offered an independent educational evaluation but the parent refused.  The parent eventually requested a due process hearing, challenging the district’s evaluations and eligibility determinations.

Ruling:  The hearing officer ruled in favor of the district on each of the issues raised in the due process hearing.  The hearing officer held that the student’s evaluation in the spring of 2013 met all of the requirements set out in the Individuals with Disabilities Education Act (IDEA).   Based on that evaluation, the district properly determined that the student was eligible for special education under the classifications of emotional disturbance and speech impairment.  The parent presented no evidence to support the contention that the student’s evaluations were inadequate or inappropriate.