FAPE
THE PARENT FAILED TO SUPPORT HER CLAIMS FOR RELIEF UNDER THE IDEA?
Case citation: K.F. v. Houston ISD, __ Fed. Appx. __, 2013 WL 6137981 (5th Cir. 2013).
Editor’s Note: The Fifth Circuit similarly dismissed another appeal filed by the plaintiff that was filed on behalf of her other minor child. In L.F. v. Houston ISD, __ Fed. Appx. __, 2013 WL 5755329 (5th Cir. 2013), the appeals court held, without detailing the facts underlying the appeal, that the parent “failed to provide any comprehensible legal argument that credibly challenge the detailed analysis and conclusions set forth in the district court’s decisions.”
Summary: Mary Ruffin’s son, K.F., attended school in the Houston Independent School District. On March 9, 2011, Ruffin filed a complaint with the Texas Education Agency, alleging that the Houston Independent School District violated various provisions of the Individuals with Disabilities Education Act (IDEA) in its handling of her son’s educational program. Specifically, she claimed that the district failed to (1) timely evaluate the learning abilities of her son, (2) provide him with appropriate counseling and accommodations, and (3) communicate with her regarding K.F.’s progress at school. The hearing officer assigned to the case determined that Ruffin had failed to prove any alleged violations of the IDEA. Ruffin appealed that decision by filing suit in federal district court, and sued the hearing officer complaining that the hearing was not fair and impartial.
The trial court dismissed the case against the hearing officer and granted judgment in favor of the school district on her IDEA claims. The trial court determined that the district met its obligations to inform Ruffin about meetings and K.F.’s progress and provided K.F. with an appropriate individualized education plan (IEP), adequate services, and an appropriate graduation and transition plan. Ruffin appealed the trial court decision to the Fifth Circuit Court of Appeals.
Ruling: The Fifth Circuit affirmed the trial court’s orders dismissing claims against the hearing officer and granting judgment in favor of the district. The appeals court observed that the party contesting the propriety of an IEP bears the burden of establishing why the IEP and the resulting placement are inappropriate under the IDEA. In this case, Ruffin failed to properly support her claims. Ruffin, proceeding without the assistance of legal counsel, did not address the legal reasoning given by the trial court for its rulings. Instead, she raised the same legal arguments and factual allegations that had already been dismissed by the lower court. The appeals court stated: “Her failure to address the district court’s legal reasoning for its holdings, together with her disorganized and incoherent repetition of arguments made and rejected below, lead us to conclude that her appeal is without merit.” The appeals court, thus, affirmed the trial court judgment in favor of the hearing officer and school district.
Child Find
DID THE DELAY IN IDENTIFYING THE STUDENT AS ELIGIBLE FOR SPECIAL EDUCATION DENY THE STUDENT FAPE?
Case citation: Student v. Houston ISD, Dkt. No. 074-SE-1112 (Hearing Officer Lynn E. Rubinett, July 25, 2013).
Summary: The student began attending school in the Houston Independent School District during the 2010-11 school year, and displayed severe behavioral problems at school. In May of 2011, the student’s mother requested a special education evaluation, but the district referred the student to its Intervention Assistance Team for Response to Intervention. The following school year, the district provided a behavior plan, classroom accommodations, and counseling. Despite the extensive accommodations and interventions, the student continued to have serious behavioral episodes and the parent again requested a special education evaluation in February of 2012. At the time, the district provided the student a § 504 plan, but agreed to conduct a full and individual evaluation (FIE) and functional behavioral assessment (FBA). The FIE confirmed a diagnosis of Attention Deficit Hyperactivity Disorder.
In May of 2012, the student’s Admission, Review, and Dismissal (ARD) committee determined that the student was not eligible for special education services because the student was performing on grade level and making progress with general education interventions. The district planned to continue to implement the student’s § 504 plan the following school year. However, the mother enrolled the student in another school within the school district. Upon the student’s enrollment there, the new school administration had not obtained any records or information concerning the student’s § 504 plan or behavioral issues and the student’s teachers had no knowledge of the student’s behavioral history or prior educational services. The teachers received no behavioral training related to the student’s needs. Further, the district did not consider whether the new school was an appropriate program for the student given his specific need for interventions and behavioral support. The student’s behavioral problems continued and escalated from the start of the 2012-13 school year. Shortly thereafter, in September of 2012, the student’s ARD Committee determined that the student was eligible for special education services as a student with an Other Health Impairment (OHI) based on emotional/behavioral needs. The district assigned the student a teaching assistant who had little training and did not follow the student’s behavioral plan.
The student’s behavioral episodes continued to worsen, despite the district’s efforts. In November of 2012, the student’s ARD Committee recommended the student’s return to the student’s home campus to receive instruction in the general education setting. The parent disagreed and requested a psychological assessment. Meanwhile, the student had a severe behavioral incident, described as losing “complete control,” throwing objects, kicking furniture, and ultimately requiring staff to restrain the student. The student’s ARD convened on that same day and determined that the student’s move back to the home campus should become effective immediately. The parent disagreed, requested a due process hearing, and placed the student in a private placement. The parent requested and received two independent educational evaluations, which concluded that the student had a mood disorder, with a probability of an emerging bipolar disorder. According to the IEE, the student met eligibility criteria as a student with an emotional disturbance and a learning disability. An independent FBA concurred with those findings, but the district had not considered the FBA at the time of the due process hearing.
Ruling: The hearing officer determined that the school district’s failure to timely evaluate and identify the student as a student in need of special education services denied the student FAPE. The assessment data, educational program data, and parent and staff recommendations demonstrated that the student had a need for special education services as early as May of 2012 when the student’s ARD Committee met to consider the student’s eligibility. The FIE team concluded that the student had ADHD that impacted academic performance and behavior in the classroom. The FIE team determined that the student had a disability and was in need of special education services. Nevertheless, the ARD Committee declined to find the student eligible. The hearing officer, however, found no harm during the 2011-12 school year, due to the implementation of extensive interventions the student received.
According to the hearing officer, the failure to identify the student and provide special education services resulted in a denial of FAPE when the student transferred to the second school during the fall of the 2012-13 school year. Specifically, the hearing officer concluded that the district failed to provide the student with an individualized program based on assessment and performance. The district also did not collaborate or communicate with key stakeholders in providing services to the student for at least the first month of school. The record showed further that the student failed to progress, and actually regressed substantially, according to the hearing officer. The student completed little to no academic work during the student’s time at the new school. Thus, the district failed to provide the student FAPE at the new school. The hearing officer concluded that the district properly recommended the student’s return to the home campus and that the student’s educational needs were best met there.
The parent also claimed that the district improperly changed the student’s placement for disciplinary reasons when the student was suspended for seven days and the school required the parent to pick the student up on several occasions due to behavior. The hearing officer disagreed. The student was not removed for more than ten days. Although the behavior at issue was substantially similar in each incident of suspension, the hearing officer held that “there were numerous instances of such behavior for which Student was not suspended and that other responses to Student’s behavior occurred.” Thus, the disciplinary removals did not constitute a change in placement under the IDEA. For denying the student FAPE, the hearing officer ordered the district to consider the student’s IEEs, consider whether psychological testing was needed, and develop a transition plan, appropriate IEPs, and a BIP. The district also was required to properly train all staff members working with the student.
Things to Remember: The dividing line between what is an intervention pursuant to RtI, an accommodation under 504 and “special education” under IDEA is imprecise to say the least. Here, the ARDC reasoned that the child did not need special education services because he was making good progress without such services. But the hearing officer held that the student was receiving such extensive accommodations and interventions that he was already receiving special education services, even though they were not labeled as such. Thus the hearing officer concluded that the student was making progress because of the services he was receiving, services he needed in order to make progress. The hearing officer overturned the “not eligible” decision and ruled that the district violated child find requirements.
DID THE SCHOOL DISTRICT VIOLATE ITS CHILD FIND DUTIES?
Case citation: Student v. Brownsville ISD, Dkt. No. 188-SE-0413 (Hearing Officer Sharon M. Ramage, August 2, 2013).
Summary: The student attended Brownsville Independent School District when the district determined that the student was eligible for special education and related services as a student with a specific learning disability in basic reading, reading comprehension, reading fluency, written expression, math calculation, and math problem solving. The parent requested dyslexia testing when the district first placed the student in special education, and every year following. However, the district declined to provide the testing.
The district provided the student a number of accommodations during the 2012-13 school year and placed the student in general education classes for all core subjects with resource class support in reading, Language Arts, and math. During an ARD Committee meeting in December of 2012, the parent expressed disagreement with the student’s placement because the district did not identify the student as having dyslexia and did not offer dyslexia services. The parent requested and received an IEE that identified the student as having dyslexia and recommended specific services to target the student’s needs. The parent requested a due process hearing, arguing that the district did not timely evaluate and identify the student’s disability, and did not provide an appropriate program for the student.
Ruling: The hearing officer ruled in favor of the student. The student demonstrated significant deficits in basic reading, reading comprehension, and written expression. In addition, the student’s deficits related to the student’s dyslexia were severe, according to the hearing officer. However, the goals and objectives provided by the student’s ARD Committee failed to address the student’s weaknesses in phonics, recognizing basic sight words, basic reading skills, and spelling. The hearing officer concluded that the IEP provided to the student was inadequate and did not provide FAPE. The district also did not provide specifically designed instruction to the student to meet the student’s unique needs. Although the school had a dyslexia class at the student’s school, the district failed to identify the child’s dyslexia or provide appropriate services.
The hearing officer also determined that the student did not demonstrate positive academic progress. Although the district allowed the student to advance grade levels each year, the student read only at a first grade level. According to the hearing officer, the student’s passing grades were only due to the extensive accommodations provided and did not accurately reflect progress. As a result, the hearing officer ordered the district to provide the student with compensatory services, appropriate goals and objectives, and a dyslexia program that followed the recommendations of the IEE evaluator.
Least Restrictive Environment
WAS THE GENERAL EDUCATION SETTING THE LEAST RESTRICTIVE ENVIRONMENT FOR THE STUDENT WITH AUTISM?
Case citation: Student v. Aubrey ISD, Dkt. No. 211-SE-0312 (Hearing Officer Lynn E. Rubinett, August 5, 2013).
Summary: The student attended school in the Aubrey Independent School District and qualified for special education services as a student with autism and a speech impairment. The student’s first FIE demonstrated that the student was completely nonverbal and relied on physical manipulation, touching, crying, tantrums aggression, and pushing away. The district placed the student in a general education classroom with special education support via a special education certified teacher, access to a teacher’s assistant, occupational therapy, and speech therapy. The student’s ARD Committee also completed a comprehensive Autism Supplement and requested an assistive technology evaluation.
Before the following school year, the student’s ARD Committee met to review progress and develop an IEP for the student. The parent expressed concerns with the student’s progress in the areas of self-help and communication, and reported the student acting out physically and verbally at home and in the community. The parents requested an FBA, which the ARD agreed to provide. The parents also requested an independent educational evaluation (IEE), but the district offered to update the student’s FIE. The parents filed a request for a due process hearing, claiming that the district did not provide the student FAPE or placement in the least restrictive environment.
Ruling: The hearing officer concluded that the district complied with the IDEA. The parents contended that the general education classroom was not the least restrictive environment for the student because the student was unable to learn, progress, and access the general education curriculum in that setting. The parents wanted a smaller, more structured setting specifically designed to meet the needs of a student with autism. Specifically, the parents requested an Applied Behavior Analysis-based classroom taught by an ABA therapist.
Under the school district’s program, the student made meaningful progress in the areas of communication/language, behavior, self-help skills, social engagement and interaction, fine motor skills and attention. While progress was not always consistent across settings, the evidence reflected a “clear trend toward mastery.” The student’s placement in the general education class with special education support was tailored to the student’s needs as identified by ongoing review of the student’s performance and assessment data. Further, although there was tension between the parents and the district, the district offered services to the student that were responsive to the parents’ concerns. Thus, contrary to their claims, the parents were not denied meaningful participation in the development of the student’s program. Furthermore, the program provided by the district offered the student an education in the least restrictive environment. According to the hearing officer, the program “balances the twin mandates of IDEA to include Student to the maximum extent appropriate while meeting student’s individual educational needs.” Thus, the hearing officer, denied all relief requested by the parents.
