THE SCHOOL DISTRICT DID NOT DENY THE STUDENT A FAPE
Case citation: R.P. v. Alamo Heights ISD, __ F.3d __, 2012 WL 6701939 (5th Cir. 2012).
Summary: The student attended school in the Alamo Heights Independent School District and qualified for special education services as a student with autism, an intellectual disability, and a speech impairment. In November of 2009, the parent requested a due process hearing raising numerous complaints, procedural and substantive, concerning the student’s assessments, placement, services, and IEPs. The parents also complained that the district denied parental participation in the ARD process. The parent claimed further about the qualifications of school staff and handling of the student’s educational records. The main issue before the hearing officer was whether the district denied the student a free appropriate public education (FAPE).
The hearing officer determined that, based on the record as a whole, the district provided the student a FAPE. [See, Student v. Alamo Heights ISD, Dkt. No. 070-SE-1109 (Hearing Officer Stephen P. Webb, April 12, 2010); Texas School Administrators’ Legal Digest, February 2011)]. R.P. appealed the hearing officer’s decision by filing suit in federal court. The trial court upheld the hearing officer’s decision that the district had provided the student FAPE. [See, R.P. v. Alamo Heights ISD, 2012 WL 3501852 (W.D. Tex. 2011); Texas School Administrators’ Legal Digest, January 2012]. The parents appealed to the Fifth Circuit Court of Appeals.
Ruling: The Fifth Circuit affirmed the judgment in favor of the school district, finding that the student had been provided FAPE. The appeals court first considered whether the district complied with procedural requirements of the Individuals with Disabilities Education Act (IDEA). R.P. complained that her parents were not permitted to participate fully in ARD committee meetings in that the district (1) prematurely terminated ARD meetings, (2) improperly voted to approve IEPs instead of seeking consensus, (3) did not meaningfully consider parent input, and (4) made decisions concerning the student’s IEP prior to the ARD meetings.
According to the Fifth Circuit, the district did not deny R.P. a FAPE by occasionally ending ARD meetings early due to the father’s behavior. The record showed that tensions ran high at meetings and at times the father “allowed his emotions to thwart resolution of the educational issues.” When meetings ended prematurely, the district rescheduled them at the father’s convenience and ensured that R.P. did not lose any educational opportunities. In addition, there was no evidence in the record showing that the district voted on the IEP rather than attempt to reach consensus. Further, the record showed that the district allowed the parents meaningful participation in the ARD process. Thus, the district complied with the IDEA’s procedural requirements.
R.P. also complained that the district did not conduct a timely assistive technology evaluation and failed to provide a functional behavioral assessment (FBA) before instituting a behavior intervention plan (BIP). The appeals court held that the district did not err when it created a BIP for R.P. without first conducting an FBA. The appeals court stated that the “regulations suggest – but do not require – that an FBA be used to develop a BIP.” However, the appeals court determined that R.P.’s educational program was not sufficiently individualized based on current assessments because the district had not discussed or incorporated a required assistive technology assessment into the student’s 2008-09 IEP. Nevertheless, the record showed overall that R.P. received positive academic and nonacademic benefit from her program. According to the appeals court, that is one of the most critical factors in determining whether a student received FAPE. While the district’s handling of the assistive technology assessment “was not optimum,” R.P. nevertheless received FAPE.
Things to Remember: This case demonstrates that student progress continues to be the “gold standard” in assessing FAPE claims. Despite a timeline error, the district demonstrated that the student made progress.
Americans with Disabilities Act
DID THE SCHOOL DISTRICT ENGAGE IN THE “INTERACTIVE PROCESS” TO DETERMINE WHETHER A REASONABLE ACCOMMODATION EXISTED FOR THE TEACHER?
Case citation: Nelson v. Hitchcock ISD, 2012 WL 6681917 (S.D. Tex. 2012) (unpublished).
Summary: Iris Nelson worked as a teacher’s aide for the Hitchcock Independent School District’s Head Start program. In February of 2009, she was diagnosed with severe bilateral knee arthritis, which required knee replacement surgery for both legs. She took medical leave for a total of 59 days, one day short of the 12-week leave period guaranteed under the Family and Medical Leave Act (FMLA). Under the district’s policy DEC(Local), the FMLA year for an employee started on the day that the employee’s first covered leave began. Nelson’s FMLA leave year began to run on February 24, 2009, the first day of her leave, and ran through February 24, 2010.
On August 11, 2009, before the start of the new school year, Nelson requested more than two months off for surgery to her left knee. The district’s payroll and benefits supervisor allegedly told her that her FMLA leave for that year had run out and that she would not be entitled to additional FMLA leave until the next year. According to Nelson, she stated that she would need to use a cane or walker, but the benefits supervisor told her that she was not allowed to do so. Nelson stated that she would need to take pain pills but the supervisor allegedly told her she would be drug tested. The district disputes this conversation as described by Nelson.
The supervisor later sent an email to the interim Head Start director and the superintendent recommending that Nelson not be allowed to return to the campus until she could be cleared by her doctor. Nelson alleges that she was not asked to produce a note and returned to work on August 17, 2009, the week before school started. That same day, she requested leave for her knee surgery. The leave request did not go to the proper administrator, however. Without a response to her leave request, Nelson unilaterally took leave and underwent surgery. Two days later, the superintendent formally denied Nelson’s leave request, noting that she had exhausted her FMLA leave. Subsequently, the superintendent sent Nelson a notice of termination. The reason given for the termination was that she was “unable to perform the essential functions” of her job.
Nelson later sued the district claiming violations of the Americans with Disabilities Act (ADA) and retaliation under the Title VII of the Civil Rights Act of 1964. The district requested judgment in its favor prior to trial on each of the claims.
Ruling: The trial court denied the district’s request for judgment with respect to the ADA claim, but dismissed the Title VII retaliation claim. Under the ADA, the district could not discriminate against a qualified individual on the basis of a disability. The ADA defines discrimination to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an . . . employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” A “qualified individual” is one who, with or without accommodation, can perform the essential functions of the job.
The main question in this case was whether the district failed to make reasonable accommodations that would have allowed Nelson to perform the essential functions of the Head Start classroom aide. The trial court observed that generally, an employee who needs an accommodation is responsible for informing the employer. At that point, the employer must engage in an “interactive process” which includes a meaningful dialogue to find the best means of accommodating the disability. The failure to engage in a good faith interactive process violates the ADA.
The trial court determined, here, that fact issues existed on whether the district engaged in the interactive process with Nelson to determine an accommodation that would have allowed her to perform her job. Nelson had informed the district of her knee surgery and need for crutches, a walker, and/or medication. According to the trial court, evidence suggested that the district did not engage in a good faith discussion about needed accommodations. Because genuine issues of material fact existed on those issues, the trial court denied the district’s request for judgment in its favor on the ADA claim.
With respect to her retaliation claim, Nelson alleged that the termination amounted to retaliation for assistance she gave a colleague in unrelated litigation. Title VII prohibits retaliation against an employee who opposes any practice of the employer that is unlawful under Title VII. The trial court concluded that Nelson failed to show that she engaged in activity protected under Title VII. The record showed that Nelson wrote a letter on behalf of another employee. However, the letter did not discuss matters related to a Title VII dispute. Further, the letter was never used in any Title VII litigation. Instead, it was used in support of the co-worker’s Whistleblower suit against the school district. Because Nelson did not engage in Title VII protected activity, her Title VII retaliation claim failed as a matter of law.
Things to Remember: The district may eventually prevail on the ADA claim, but at this early stage of the proceedings the court was not willing to rule for the district. The evidence as to “the interactive process” was disputed, and could not be resolved through a motion for summary judgment. The case emphasizes the employer’s duty to engage in a good faith interaction when informed of a disabling condition.
Least Restrictive Environment
DID THE SCHOOL DISTRICT OFFER THE STUDENT A PROGRAM IN THE LEAST RESTRICTIVE ENVIRONMENT?
Case citation: Student v. Northwest ISD, Dkt. No. 009-SE-0911 (Hearing Officer Mary Carolyn Carmichael, July 25, 2012).
Summary: When the student transferred to the Northwest Independent School District, the student was classified under the speech impairment and autism classifications. After further assessments, the district added the intellectual disability classification. In January of 2011, the student’s Admission, Review, and Dismissal (ARD) Committee agreed to the student’s removal from general education for one period each day for reading/language arts, math, science, daily living, and social studies inclusion support. The student also received behavior intervention services, occupational therapy, speech services, and in-home training.
From the time the student entered the district, the parent attended eleven ARD meetings, many of which reconvened for a second day. The parent fully participated in the meetings and agreed with the decisions of all but two meetings. In July of 2011, the parent disagreed with an in-home training evaluation. In October 2011, the parent disagreed with a change in placement, revisions to the student’s goals and objectives, and an augmentative communication evaluation.
Ultimately, the parent requested a due process hearing raising numerous issues related to the student’s program and placement, evaluations, parent participation, in-home training, and extended school year services.
Ruling: The hearing officer ruled in favor of the district on each of the parent’s claims. The main issue involved a change in placement for the student from a one-on-one placement to a less restrictive classroom with other special education students. The classroom had a functional academics and vocational-skills focus in a structured setting. It provided communication and socialization throughout the school day, including life skills with age-appropriate peers. The parent believed that placement in the classroom with other special education students would expose the student to inappropriate behaviors that the student would adopt.
The hearing officer observed that the IDEA requires districts to ensure that students are educated in the least restrictive setting. According to the hearing officer, the proposed classroom setting with other peers would allow the student to develop and practice needed skills. The change in placement did not decrease the student’s general education time and provided for lunch with nondisabled peers. Further, unlike the one-on-one setting, the classroom provided a setting with functional academics, independent living, socialization, and communication to help students communicate more effectively and become more independent. The student’s isolated, one-on-one setting did not provide those benefits. The hearing officer, therefore, concluded that the change in placement from a one-on-one isolated setting to a classroom with other special education students offered the student an education in the least restrictive environment.
The hearing officer rejected the remaining claims raised by the parent. The record simply did not establish violations of the IDEA with respect to the student’s evaluations, parent participation, handling of the student’s records, or procedural requirements. Overall, the district was able to show that it provided the student a free appropriate public education (FAPE). The record showed that the student received academic and nonacademic benefit under the district’s program and that the district offered the student an appropriate program in the least restrictive environment. The hearing officer, therefore, denied all relief requested by the parent.
Things to Remember: Notice that the ARDC moved the student to a less restrictive environment. Parent challenges can occur when districts propose any change of placement, whether to a more, or a less restrictive environment.
DID THE STUDENT’S BEHAVIOR REQUIRE A MORE STRUCTURED SETTING?
Case citation: Student v. Leander ISD, Dkt. No. 192-SE-0312 (Hearing Officer Brenda Rudd, August 20, 2012).
Summary: The student attended school in the Leander Independent School District and was eligible for special education services as a student with an intellectual disability, Down Syndrome, and a speech impairment. The student’s cognitive abilities were low and verbal communication was minimal. The student had a history of noncompliance, task avoidance, and elopement.
The parents and the district had a history of disagreements regarding the student’s educational program. The district agreed to transfer the student to another school. The district opened a new classroom there and assigned a certified special education teacher. Shortly into the new school year, the district held an ARD Committee meeting, during which the parent complained about the student’s IEPs. The IEP included positive behavior interventions and supports, provided a communication device to the student, and called for speech services, occupational therapy, psychological services, and adaptive PE.
The first few weeks of the school year, the district took data on objectives that were no longer in the student’s IEP. The district did not properly implement the student’s IEP initially, but soon corrected the errors. The district also provided data to the parent regularly.
Due to behavioral problems that the student had in the general education setting, the student’s ARD Committee recommended the student’s placement in a more restrictive setting. The district proposed limited placement in the general education classroom for science and language arts, as well as lunch, recess, and specials. The district proposed a more restrictive classroom setting for the remainder of his classes. The parent disagreed and ultimately filed a request for a due process hearing.
Ruling: The hearing officer ruled in favor of the district on each of the parent’s claims. The center of the dispute involved whether the district proposed a program for the student in the least restrictive environment. After the student’s behavior could not be managed in the general education setting, the district recommended placement in a more restrictive setting.
The record showed that, over the years, the district took incremental steps in reducing the student’s general education placement. The district provided the student a number of modifications and accommodations, including a one-on-one instructional aide, visual schedule, visual/picture cues, and sensory breaks, among others. The district altered the general education curriculum and provided the student with behavioral management accommodations, with limited success. According to the hearing officer, the district proved that the student had a better chance for success if the student received more instruction time in the special education setting, where the student had a higher rate of compliance. The hearing officer held that the district’s recommended placement was appropriate for the student.
THE SCHOOL DISTRICT PROVIDED THE STUDENT FAPE
Case citation: Student v. Corpus Christi ISD, Dkt. No. 301-SE-0612 (Hearing Officer Steven R. Aleman, August 11, 2012).
Summary: The student attended school in the Corpus Christi Independent School District and qualified for special education and related services under the autism classification. The student had been diagnosed with pervasive developmental disorder, not otherwise specified. The child’s placement was in five general education classes, along with resource math and language arts classes. The student was also placed in a behavior improvement class designed to support students with challenging behaviors. The class includes social skills training and an aide who helps monitor students.
In October and November of 2011, the student had a number of suspensions from school. The parent contacted the school requesting more active monitoring of the student. As a result, the district provided an aide to supervise the student during passing periods between classes. The district later placed the student in a disciplinary placement for two weeks, but did not hold a manifestation determination review (MDR). The district also did not conduct a functional behavioral assessment (FBA). Following the two-week placement, the student resumed the schedule of general education and resource classes.
The student’s ARD Committee met in November of 2011. The ARD Committee discussed and approved increased supervision of the student. The ARD Committee rejected the parent’s request for counseling services. In January of 2012, the ARD Committee met to review the student’s present levels of academic achievement and functional performance. The review indicated that the student was making progress toward IEP goals. The Committee also added new goals, such as demonstrating appropriate interactions with peers and maintaining compliant behaviors. The district agreed to provide positive support strategies, but determined that parent training was not needed.
The parent later filed a due process complaint, alleging that the district denied the student FAPE by not adequately addressing the student’s behavioral problems, and by not conducting an MDR or an FBA. The parent also complained that the district failed to provide counseling services, a paraprofessional aide, and parent training. In addition, according to the parent, the district should have fully explained the student’s “autism supplement.”
Ruling: The hearing officer rejected each of the parent’s claims. According to the hearing officer, the district appropriately developed and implemented behavioral interventions for the student. The record showed that the behavioral problems decreased following the October and November 2011 suspensions and implementation of new behavioral goals and objectives.
The district was not required to conduct an MDR for the two-week disciplinary placement. Generally, a district may not impose a disciplinary placement for more than ten consecutive school days, unless the violation was not a manifestation of the student’s disability. Under the IDEA, a school district may remove a student with a disability to an “interim alternative education setting” for up to 45 school days in “special circumstances” involving either weapons, illegal drugs, or infliction of serious bodily injury. Under such “special circumstances,” an MDR is not required. According to the hearing officer, the disciplinary incident in this case fell within the special circumstances exception and, thus, an MDR was not required. [Editor’s note: to maintain the student’s confidentiality, the Texas Education Agency redacted all details of the incident from the hearing officer decision]. Even if the district should have conducted an MDR, that was a procedural error that did not deny the student FAPE. The student continued to keep up with course work while in the disciplinary setting.
In addition, the district was not required to conduct an FBA following that disciplinary incident. In a disciplinary removal due to “special circumstances,” a new FBA is not mandatory. The record showed in this case, that the district understood the function of the student’s behavior and, therefore, an FBA was not necessary. Further, the failure to conduct an FBA did not impede the child’s right to a FAPE.
The hearing officer also determined that the student was not entitled to a counseling evaluation. The district demonstrated that the student had shown strong opposition to counseling and, as a result, the district believed that counseling would only agitate the child. The failure to provide a counseling evaluation or services did not deny the student FAPE. The parent also failed to prove that the district removed the student’s aide or that the district was required to explain in more detail, the student’s autism supplement. Although the district failed to provide parent training, that error did not result in a denial of FAPE. The student remained in school and demonstrated academic and nonacademic progress. The hearing officer, therefore, rejected each of the parent’s claims.
Things to Remember: IDEA does not say that an MDR is not required in cases of “special circumstances.” Rather, it says that the outcome of the MDR does not dictate placement. MDRs in cases involving drugs, weapons and the infliction of serious bodily injury help inform future treatment of the student, and in particular, the content of a behavior plan.