Select Page

Disability Discrimination

DID THE ATHLETIC ASSOCIATION DISCRIMINATE AGAINST THE STUDENT BASED ON HIS DISABILITY?

 

Case citation:   Mannv. Louisiana High School Athletic Association, __ Fed. Appx. __, 2013 WL 3475116 (5th Cir. 2013) (unpublished).

Summary:  A.M. was a high school student in Baton Rouge, Louisiana.   The Louisiana High School Athletic Association (LHSAA) is a nonprofit voluntary membership corporation whose members consist of both public and private schools in the state. LHSAA coordinates and regulates high school interscholastic athletics at all of its member schools, including issuing and enforcing eligibility rules for student athletes.

A.M. was enrolled at Episcopal High School until September 2011, when he was beginning his sophomore year.  In the spring of 2011, A.M.’s grades fell, and his parents had him evaluated by Dr. Candy Lawson, a psychologist who determined that A.M. suffered from an anxiety disorder that was negatively interfering with his performance at school.  Dr. Lawson made detailed recommendations concerning academic accommodations that might assist A.M.   In the fall of 2011, A.M. transferred to the Dunham School.  At Dunham, A.M. received individualized instruction and other academic accommodations tailored to his specific needs, some of which were unavailable at Episcopal. Both Episcopal and Dunham were private Christian schools. Both were members of LHSAA.

Because A.M. transferred from one school to another within the same residence zone, he became subject to LHSAA’s “transfer rule,” which rendered a student who transfers schools within a residence zone ineligible for athletics for one year from the date of transfer.  The transfer rule exists to prevent recruiting of high school athletes and to discourage transfers on the basis of athletics.  A.M. filed for an exemption from the transfer rule with the LHSAA.   It was denied.   John Mann, on behalf of his son, then brought suit in state court.  After a motion for a temporary restraining order in the state suit was denied, Mann dismissed that suit without prejudice.  A.M. then sat out six games of the 2011 football season because he was ineligible under the transfer rule.

On May 2, 2012, before the beginning of the 2012 football season, Mann, on behalf of A.M., filed a complaint in the Middle District of Louisiana alleging violations of the Americans with Disabilities Act (ADA) and requesting declaratory and injunctive relief prohibiting LHSAA from continuing to treat A.M. as ineligible to participate in athletics under its transfer rule.  Mann filed a motion for a preliminary injunction seeking to enjoin LHSAA from imposing on A.M. the additional time remaining in the ineligibility period, which made up the first four games of the season that began in the fall of 2012.  Mann contended that A.M.’s transfer was due to a disability, because the Dunham School provides academic services and accommodations more tailored to the learning needs that result from his anxiety disorder than Episcopal, and that imposing the transfer rule in this situation violated the ADA.

The LHSAA also had a “restitution rule” requiring that if an ineligible student is allowed to participate due to a court order and that court order is later vacated, reversed or overturned, then the LHSAA may (1) require that individual or team records and performance achieved during participation by the ineligible student shall be vacated or stricken; (2) require that team victories be forfeited to the opponent; and/or (3) require that team or individual awards earned by the ineligible student be returned to the Association.   In the motion for a preliminary injunction, Mann also sought an order prohibiting LHSAA from imposing the restitution rule against A.M. or Dunham if an injunction regarding A.M.’s eligibility was granted and then later vacated or reversed.

On August 20, 2012, after an evidentiary hearing, the district court granted the preliminary injunction, which enjoined LHSAA from: (1) treating A.M. as ineligible to participate in any interscholastic athletics at Dunham for which he was otherwise eligible, and; (2) imposing sanctions under the restitution rule against A.M. or Dunham in the event the injunction was later reversed or vacated or if LHSAA prevailed on the merits. LHSAA unsuccessfully sought a stay of the ruling in favor of A.M.  As a result, A.M. participated in the 2012 football season under the terms of the injunction.  LHSAA then appealed the grant of the preliminary injunction to the Fifth Circuit Court of Appeals.

Ruling:  The Fifth Circuit reversed the trial court ruling in favor of the student. The Fifth Circuit determined that it had jurisdiction to review the trial court’s issuance of the preliminary injunction. The LHSAA had argued that the trial court lacked jurisdiction over the ADA claims because it was not subject to the ADA and because A.M. was not disabled within the meaning of the ADA. The Fifth Circuit observed that the ADA conveys jurisdiction and creates a cause of action and, consequently, the issue of whether jurisdiction exists is intertwined with the merits of the case.

The plaintiffs argued that the appeal was moot because the one-year eligibility sanction had already expired. The Fifth Circuit disagreed, finding that if the injunction is reversed, A.M. would be subject to the remaining ineligibility period that would have applied if the injunction had not been issued.  Also, the parties continued to dispute the validity of LHSAA’s restitution rule. Thus, the case was not moot.

With respect to the preliminary injunction, the appeals court observed that Mann had to establish (1) a likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction was not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.  The main issue on appeal was whether Mann could prove a likelihood of success on the merits of A.M.’s ADA claim.  Specifically, the appeals court considered whether A.M. was disabled under the meaning of the ADA.

Although it was disputed, the appeals court assumed that LHSAA was subject to the ADA.   To prove a disability under the ADA, A.M. had to have a “physical or mental impairment that substantially limits one or more major life activities.” Further, “major life activities” are those “activities that are of central importance to daily life,” such as “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

Instead of arguing that A.M. was disabled under ADA standards, Mann argued that A.M. qualified with a disability under the Individuals with Disabilities Education Act (IDEA).   The appeals court, held that the IDEA “is not at issue in this case” and proceeded to analyze whether or not the student’s impairment met ADA standards.  According to the Fifth Circuit, the ADA definition of disability is more stringent than IDEA’s because “it requires a plaintiff to prove that his or her impairment substantially limits a major life activity, which is an inquiry entirely absent from the IDEA definition.”

In finding that A.M. had a disability under the ADA, the trial court relied on an expert report diagnosing A.M. with an anxiety disorder.  According to the court of appeals, however, the diagnosis of an anxiety disorder, without more, was insufficient to support a finding that A.M. was disabled under the ADA.  Having a disability is not enough without a showing that the disability limits a major life activity.  The expert report indicated, without any specificity, that the anxiety disorder impacted A.M. in learning, concentrating, and thinking.  However, the doctor did not describe any particular way that A.M. was substantially limited in any of those major life activities due to the anxiety disorder.  Because Mann failed to demonstrate that A.M. had a disability under the ADA, he could not establish a substantial likelihood of success on the merits.  The trial court, therefore, improperly issued an injunction against the LHSAA.

Comments: The court dismissed Dr. Lawson’s report because it was “conclusory.” It offered  a conclusion without the benefit of supporting factual data.  School officials should keep in mind that reports from doctors, psychologists and other experts must be supported by factual data rather than simply expressing a “conclusory” opinion.

 

 

DID SUFFICIENT EVIDENCE SUPPORT THE PARENT AND STUDENT’S DISABILITY DISCRIMINATION SUIT?

 

Case citation:  Pagan-Negron v. Seguin ISD, 113 LRP 38715 (W.D. Tex. 2013).

Summary:  C.M.P. attended school in the Seguin Independent School District and received special education and related services due to a speech impairment.  C.M.P. also had a history of behavioral problems, such as tantrums and meltdowns, but he did not receive special education services as a result of those problems.  On January 14, 2010, C.M.P. had a significant behavioral incident in which he was throwing his belongings and hitting other students.   C.M.P.’s third grade teacher called on the principal to remove him from her classroom.  The principal did so, and warned the student that his behavior could result in placement at the alternative school.

Due to district boundary changes, C.M.P. attended a different elementary school during fourth and fifth grade.  Prior to his fifth grade year, a private evaluation determined that C.M.P. “appeared to meet the criteria for diagnosis of Asperger’s Disorder.”  The following school year, the student’s Admission, Review, and Dismissal (ARD) Committee added the eligibility category of autism and implemented additional services.  No other significant behavioral issues occurred during C.M.P.’s fourth grade year. However, during C.M.P.’s fifth grade, his behavioral problems escalated to the point that he was hospitalized.  With the help of an advocate, the parent also secured homebound services from the district.  The parent and the advocate also informed the district that they believed the principal verbally abused C.M.P. during the January 14, 2010, incident at the student’s previous elementary school. They also reported the matter to Child Protective Services (CPS), but the case was dismissed because too much time had elapsed and C.M.P. no longer attended that elementary school. The parent also requested a due process hearing against the school district, but the parties entered into a settlement agreement concerning the issues raised.

The parent later filed suit against the school district.   The lawsuit revolved around the alleged incident on January 14, 2010. The parent argued that the incident created a hostile educational environment in violation of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA), and violated C.M.P.’s substantive due process rights under the Fourteenth Amendment.  The parent, who required a wheelchair, also sued the district for violations of the ADA for her difficulty in accessing the district’s facilities.  The district sought judgment in its favor prior to trial on each of the claims.

Ruling:  The trial court granted judgment in favor of the school district.  The trial court determined first that the settlement agreement did not bar the lawsuit.  The settlement agreement addressed claims raised in the due process proceeding under the Individuals with Disabilities Education Act (IDEA).   It did not address claims raised under Section 504, the ADA, and the Fourteenth Amendment.  Thus, the settlement agreement did not preclude the lawsuit.

Nevertheless, the trial court held that C.M.P.’s Section 504 and ADA claims were without merit.   C.M.P. alleged that the principal acted with discriminatory animus when she disciplined him for acting out on January 14, 2010.  However, the plaintiffs failed to produce any evidence to substantiate the claims.  At the time of the disciplinary incident, C.M.P. had not been diagnosed with a disability related to his behavioral problems.  The plaintiffs produced no evidence demonstrating that the principal exhibited a pattern of discriminatory behavior toward C.M.P.  Thus, C.M.P.’s Section 504 and ADA claims were without merit.

C.M.P. also claimed that the district violated his rights to bodily integrity under the Due Process Clause of the Fourteenth Amendment.  The trial court disagreed and determined that, even accepting the allegations as true, they were insufficient to state a constitutional violation.  The record showed, instead, that the principal reasonably responded to a teacher’s complaint that C.M.P. was not properly behaving in the classroom and took action to stop the behavior.  C.M.P.’s claims did not rise to the level of a constitutional violation.

The trial court likewise dismissed the parent’s ADA claims stemming from wheelchair accessibility of district facilities.  The district properly argued that the claims were barred by the ADA’s two-year statute of limitations.  At deposition, the parent stated that her claims arose in 2006 and 2008.  The lawsuit, however, was filed in January of 2012.   The claims, therefore, fell well outside of the statute of limitations.  Although the parent later claimed that the violations were “ongoing and continuous,” she provided no evidence to support that allegation.  Thus, the ADA accessibility claims were without merit.  The trial court entered judgment in favor of the district on each of the plaintiffs’ disability discrimination claims.

 

 

IS AN EMPLOYEE’S DRUG ADDICTION PROTECTED FROM DISABILITY DISCRIMINATION?

 

Case citation:  Melendez v. Houston ISD,      S.W.3d      (Tex. App. – Houston [14th Dist.] 2013).

Summary:  Earline Melendez worked as a clerk for the Houston Independent School District on an at-will basis.  She provided secretarial support and processed student discipline forms.  On December 4, 2009, several students were arrested at school for their alleged involvement in an off-campus burglary.  As police began processing their arrests, Melendez prepared the students’ discipline forms.  Melendez also signed the forms on behalf of several assistant principals, acting on her longstanding belief that she had permission to do so.  The forms were distributed to the affected students, who were suspended.

On December 7, the following school day, the principal received a complaint from parents, requesting an explanation for the students’ suspensions.  Through this complaint, the principal realized that Melendez had processed the students’ discipline forms before administrators could coordinate their own response to the alleged burglary.  According to the principal, Melendez had no authority to sign the forms on behalf of anyone else and she had disregarded specific directions to not begin the disciplinary process.

The principal made plans to discuss the incident with Melendez and to determine an appropriate course of action. These plans were interrupted on December 10, when Melendez checked into a hospital under the recommendation of a school nurse.  The nurse had received information earlier that morning that Melendez was “acting kind of funny.”  Melendez reportedly had difficulty walking, her speech was slurred, and she could not keep her eyes open.  Melendez, who had previously suffered a back injury, explained that she had taken prescription pain pills and muscle relaxants on an empty stomach.  The nurse contacted Melendez’s daughter, who was a student at the school, and the daughter revealed that Melendez had received treatment in July 2009, for problems relating to addiction.  When Melendez was readmitted to the hospital, she was again diagnosed with an opiate dependency.

Melendez stayed in the hospital for five days and returned to work on December 16.   That day, she had a meeting with the principal and an assistant principal.   The parties dispute what happened during the course of this meeting.  The principal contended that she discussed only the student discipline incident and her concern that Melendez had forged the signatures of the assistant principals.  Melendez contended that her personal disabilities were also addressed during the meeting.  Melendez alleged, for instance, that the school nurse interrupted the meeting to show the principal Melendez’s confidential medical information. According to Melendez, the principal told her to resign or face immediate arrest for having forged the signatures of the assistant principals.   Melendez also contended that she was told to state on her resignation form that she was leaving HISD for “medical/ personal” reasons.

Following her resignation, Melendez filed a charge of discrimination with the Texas Workforce Commission, which issued her a right-to-sue letter.  Melendez then initiated this action alleging that the district had discriminated against her on the basis of a disability in violation of the Texas Commission on Human Rights Act (TCHRA).   Specifically, Melendez alleged that she was constructively terminated “on the fact that she had just been released from an in-patient medical treatment facility” and “due to her alleged abuse of prescription medication.”  Melendez also sued the principal in her individual capacity, alleging wrongful termination, defamation, intentional infliction of emotional distress, and other causes of action arising out of the student disciplinary incident.

The district and the principal filed separate motions for summary judgment.  The district argued that the discrimination claim failed as a matter of law because the TCHRA expressly excludes addiction from the definition of disability.  The district asserted that Melendez could produce no evidence that she was disabled and that non-disabled employees were treated more favorably.   In her own separate motion, the principal argued that Melendez had failed to exhaust her administrative remedies. The principal also argued that she was immune from liability, that Melendez’s defamation claims were barred by the statute of limitations, and that Melendez was restricted from pursuing a claim for emotional distress.  The trial court granted both motions for summary judgment and Melendez appealed.

Ruling:  The court of appeals upheld the judgment in favor of the district and the principal.  The main issue on appeal was whether Melendez’s alleged drug addiction qualified as a “disability” under the TCHRA.  The TCHRA specifically excludes from protection “a current condition of addiction to the use of alcohol, a drug, an illegal substance, or a federally controlled substance.”

Melendez identified her disability as an “abuse of prescription medication.” The parties disputed whether Melendez had a “current condition of addiction” because she was not using prescription medication at the time of her resignation.  Looking to federal cases defining a “disability” under the Americans with Disabilities Act (ADA), the appeals court construed a “current condition of addiction” as a condition of addiction that is “sufficiently recent to justify the employer’s reasonable belief that the addiction remained an ongoing problem.” In this case, the evidence showed that Melendez suffered from an opiate addiction in the days and weeks preceding her resignation.  She acknowledged taking pills in excess of her prescribed dosage, that she had been addicted before, and that her use of pills had been ongoing since December of 2009.  On at least one occasion, she was impaired at school because of drug use and had been hospitalized six days before her resignation.  The appeals court stated:  “As a matter of law, Melendez’s addiction was sufficiently recent at the time of her purported termination for HISD to reasonably believe that her addiction was ongoing and interfering with the essential duties of her job.”

Melendez also argued that she was protected by the ADA’s “safe harbor provision” which covers individuals who have successfully completed a supervised drug rehabilitation program and are no longer engaging in illegal drug use.  The appeals court observed, however, that the TCHRA does not have a safe harbor provision, and the ADA’s version applies only to individuals who have been drug-free for a significant period of time.  At the time of Melendez’s resignation, she had only been off of drugs for five days.   Thus, even if the safe harbor provision applied, her abstention of only five days was not sufficient to warrant protection.

With respect to the claims against the principal, the appeals court held that Melendez had not exhausted administrative remedies. All of her claims against the principal arose in the context of an employment dispute at school.  Melendez was required to first pursue her claims through the administrative process and her failure to do so deprived the trial court of jurisdiction.  Thus, the claims against the principal were without merit.  The court of appeals affirmed the judgment in favor of the district and the principal.

Comments:  As to the “safe harbor” provision under the ADA, the court cites an earlier case in which an employee, drug-free for five weeks, was not entitled to the safe harbor. The court

notes here that if five weeks is not long enough, then five days is certainly not long enough.

 

 

Child Find

 

DID THE SCHOOL DISTRICT MEET ITS CHILD FIND OBLIGATIONS?

 

Case citation:  Student v. Houston ISD, Dkt. No. 131-SE-0213 (Hearing Officer Lynn E. Rubinett September 6, 2013).

Summary:  The student enrolled in the Houston Independent School District for the 2010-11 school year and demonstrated significant behavioral challenges at school, including temper tantrums, defiant behavior, and refusals to participate.  The student also demonstrated a weakness in pre-reading skills, and was identified for early reading intervention, which was a general education program.   The reading intervention teacher referred the student for a special education evaluation during the spring of 2011, but the student did not qualify for special education services.  During that school year, the student suffered partial hearing loss and missed some days of school.  At the end of the school year, the student had not mastered benchmarks and was still developing in all areas of reading.  The parent requested that the student repeat the grade level, and the teacher agreed.  The teacher also noted defiant behavior that concerned her.

In May of 2011, the mother requested a functional behavioral assessment (FBA) and learning evaluation.  The district convened a campus referral meeting, during which the district decided to put into place an Intervention Assistance Team/Response to Intervention (IAT/RTI) for the student at the beginning of the 2011-12 school year, instead of conducting a special education evaluation.  The committee recommended counseling once per week, a behavior chart and plan, continued reading intervention, and evaluation for ADHD.

While student seemed to adjust well behaviorally to the program the following school year, the student made little academic progress under the district’s program.   In October of 2011, the student’s IAT team referred the student for academic evaluation. In January of 2012, the parent provided documentation concerning treatment the student was receiving for ADHD and requesting an Other Health Impairment (OHI) eligibility form so that student could receive services.  School staff completed the OHI eligibility form on April 9, 2012.   In addition, the district completed its Full and Individual Evaluation (FIE) the same day. On May 17, 2012, the student’s Admission, Review, and Dismissal (ARD) Committee recommended eligibility based on OHI and provided an IEP designed to address the student’s reading and writing deficits.  The student’s IEP did not address the student’s behavioral needs.   By the end of the school year, the student had not progressed in reading and continued to have difficulty with behavior, including hitting, throwing, refusal, and defiance.

The parent enrolled the student in a specialized school within the district the following school year.  The school indicated that it could not implement the student’s IEP as written because it included two hours of resource time. The student’s ARD Committee met in September of 2012, and reduced the amount of resource time.   The ARD Committee did not discuss the student’s FBA, which was to remain in effect during the 2012-13 school year. At the new school, the student received intensive, one-on-one reading instruction using a structured, multi-sensory approach.

The teacher also worked on improving the student’s self-esteem and willingness to attempt new skills.   By December of 2012, the student had improved significantly.

In January of 2013, the ARD Committee changed the student’s schedule, which included more frequent transitions. Student’s behavior began to deteriorate to the point that it impacted the student’s learning and academic progress.  An ARD meeting scheduled to discuss student’s behavior was cancelled, but eventually held in February of 2013.   The ARD proposed a Behavior Support Plan.   The parent did not agree with the plan because she believed it was not based on sufficient data. The district adopted the program.  However, it was not fully implemented because at least one staff member thought that it was not to be implemented due to the parent’s disagreement with it.   The parent later requested a due process hearing, claiming that the district failed to meet its child find obligations under the Individuals with Disabilities Education Act.

Ruling: The hearing officer ruled in favor of the parent, concluding that the district failed to (1) timely evaluate and identify the student as eligible for special education services under the IDEA, and (2) provide the student a free appropriate public education during the spring 2013 semester. According to the hearing officer, the district had reason to suspect a special education disability as of October of 2011, when the student demonstrated a lack of educational progress and continued behavioral concerns and the IAT recommended that the student be evaluated.  However, the OHI eligibility form was not completed until April of 2012, despite the parent’s request for an evaluation in October of 2011, a doctor’s diagnosis of ADHD, and a parent request for OHI eligibility in January of 2012.  The district did not begin the evaluation process until February of 2012, and did not complete it until April of 2012. The hearing officer stated:   “Respondent’s failure to timely act on the IAT referral and OHI eligibility resulted in a meaningful delay in services to Student.”  Thus, the district’s failure to find the student eligible for special education as of February of 2012 constituted a violation of the child find provisions of IDEA that resulted in substantive educational harm to the student.

The hearing officer also determined that the district did not provide the student with FAPE during the spring semester of the 2012-13 school year.  The hearing officer held that the student’s IEP appropriately addressed the student’s unique deficits in reading and writing and recognized the severity of the student’s need by providing two hours per day of specialized instruction in reading and writing in a resource setting.  Thus, the IEP was appropriate with respect to reading.   However, the IEP did not adequately address the student’s behavioral or emotional needs. It did not include behavioral goals, a behavior support plan or behavior management system, or provide for counseling or social skills training.   The record showed that the student’s behavior was an ongoing issue and it escalated during the spring 2013 semester.   While the student’s ARD Committee attempted to address the student’s behavioral issues in February 2013, the student’s program was not based on the student’s assessment or performance and implementation of the student’s plan was not effective or consistent.  As a result, the student continued to exhibit behavior that impeded student’s learning and academic progress.  The hearing officer ordered the district to provide the student with compensatory services.

Comments: The main problem for the district with regard to “child find” was the lengthy gap between the referral by the IAT Team and the actual evaluation.  The IAT Team concluded in late October that interventions were not working and an evaluation was called for. But the evaluation was not completed until April.   Too long.

 

 

DID THE CHARTER SCHOOL TIMELY AND PROPERLY EVALUATE THE STUDENT?

 

Case citation:   Studentv. Harmony Science Academy, Dkt.

No. 234-SE-0513 (Hearing Officer Ann Vevier Lockwood October 11, 2013).

Summary:   The student enrolled in the Harmony Science Academy, a charter school, for the 2012-13 school year.  The student previously attended a public school and received Section 504 services due to a diagnosis of ADHD.   When the student enrolled in the charter school, the parent did not inform the school of the student’s ADHD diagnosis or the provision of Section 504 services.

In August of 2012, the parent requested a meeting with the school’s Special Programs Administrator to discuss the next school year, but received no response.  In September of 2012, the parent informed the student’s teacher of the ADHD diagnosis, but no action was taken. The student’s English teacher also learned of the student’s issues and informed the Special Programs Administrator, who requested the student’s prior educational records.  None were provided and the charter school did not pursue the matter at that time.  The student then failed the second six weeks, prompting the school to hold a meeting with the parent.  The student was provided make-up assignments and ultimately passed the third six-week grading period.

In December of 2012, the parent again requested a meeting with the Special Programs Administrator to discuss the student’s program.  The parent provided documentation from the student’s prior school, and a number of interventions were put into place to help the student succeed.  The student did not pass a portion of the STAAR exam and the school proposed additional tutoring and a summer school program.  The school convened a Student Support Team (SST) on February 8, 2013, but no behavioral issues were addressed at that time.  The student’s mother requested a special education evaluation.  The school proposed serving the student under Section 504, but the parent rejected the proposed 504 services.  The school then agreed to provide a special education evaluation to the student.  While the evaluation was pending, the student continued to struggle academically.

While the  FIE (Full Individual Evaluation) was being conducted, teachers reported that the student had difficulties with turning in homework, maintaining focus, and a lack of organization.  The FIE concluded that the student did not meet eligibility criteria as a student with a learning disability, but recommended a number of accommodations to assist the student in making satisfactory educational progress. The FIE also concluded that all of the accommodations could be implemented under an RTI process or Section 504 plan.  The student’s ARD Committee met and determined that the student did not exhibit a need for special education services, despite a diagnosis of ADHD.   The ARD Committee offered services under a Section 504 plan, but the parent disagreed and requested a psychological evaluation and an independent educational evaluation (IEE).  The charter school agreed to the psychological evaluation, but denied the request for an IEE.   The parent later requested a due process hearing and the charter school counterclaimed, seeking an order that the FIE was appropriate.

Ruling:  The hearing officer held that the charter school did not timely respond to a parent request for an FIE, but otherwise ruled in favor of the charter school.  The hearing officer observed that parental consent should be obtained within “a reasonable period of time after the referral for an FIE.”  However, the record showed that the school waited three and a half weeks to secure parental consent after it agreed to conduct an FIE.  According to the hearing officer, the school failed to respond to the parent’s request for a special education evaluation in a timely manner.

Nevertheless, the district timely completed the student’s FIE within 53 days from the date of receiving parent consent.  The FIE met all of IDEA’s requirements for an appropriate evaluation. The evaluation used a variety of assessment tools and strategies and was administered appropriately by trained professionals.  The FIE also included review of student report cards, STAAR results, the student’s OHI report by a physician, sociological information from the parent, teacher input, disciplinary history, behavior rating scales, health screenings, Student Support Team information, and classroom observation.  The school also provided the parent with adequate notice of the FIE process, an explanation of rights, and notice of procedural safeguards.

The hearing officer also concluded that the school met its child find obligations with respect to the student.  Although the student had been diagnosed with ADHD, the student did not exhibit a need for special education services.  The student demonstrated issues with organization, focus in the classroom, and some academic weakness.  Nevertheless, the student was capable of completing grade-level work, made passing grades in core classes, and benefitted from teacher classroom strategies and implementation of the RTI plan adopted from the student’s previous school. Further, even though the student did not always take advantage of tutorials offered by the school, the student passed all classes. The student did not pass one portion of the STAAR exam, but the hearing officer concluded that any needed accommodations could be provided through RTI or a Section 504 plan.

Contrary to the parent’s contentions, the FIE considered the student’s failing grades and negative behaviors when it made the student’s eligibility determinations.  The FIE included recommendations to address those issues and the ARD Committee considered all relevant information compiled for the FIE. According to the hearing officer, the school timely conducted the FIE, the FIE was appropriate, and the school properly determined that the student did not qualify for special education and related services. The hearing officer also denied the parent’s request for an IEE at district expense.  However, due to the procedural error in failing to timely obtain parent consent for the FIE, the hearing officer ordered the school to provide training to school staff regarding special education referrals and identification.

 

 

Disciplinary Placement

 

DID THE SCHOOL DISTRICT IMPROPERLY DISCIPLINE THE STUDENT?

 

Case citation:   Student v. Plano ISD, Dkt. No. 268-SE-0713 (Hearing Officer Stephen P. Webb August 9, 2013).

Summary: The student attended school in the Plano Independent School District and was eligible for special education and related services as a student with a specific learning disability, a speech impairment, and other health impairment (OHI) due to Attention Deficit Hyperactivity Disorder (ADHD).  The student’s behavior impeded the student’s own learning and that of others. The district, therefore, developed measurable adaptive behavior goals for the student and a behavior intervention plan (BIP).  The student, nevertheless, remained subject to the Student Code of Conduct.

In the fall of 2012, the student engaged in an altercation with another student.  The district conducted a manifestation determination review (MDR) but determined that the student’s behavior during the incident was not a manifestation of the student’s disability. The student’s MDR Committee decided that the student would serve three days of in school suspension on campus and receive all services under the existing IEP in pull-out classes.

In 2013, the student again engaged in a physical altercation with another student.  An MDR met to determine whether the student would be placed in the district’s Disciplinary Alternative Education Program (DAEP). The student had a functional behavior assessment (FBA) and a BIP in place that had been implemented appropriately.  The MDR Committee ultimately determined that the behavioral incident was not a manifestation of his disabilities. As a result, the district assigned the student to the DAEP for 45 days.  The student’s parent did not agree and requested a due process hearing.  The parent claimed that the MDR incorrectly concluded that the behavior was not a manifestation of the student’s disability.  The parent also claimed that the student had debilitating allergies to the school environment and requested a homebound placement.

Ruling: The hearing officer ruled in favor of the district regarding the disciplinary placement and held that the student was not entitled to a homebound placement.  The disciplinary action taken against the student for the two student altercations was appropriate.  The first incident did not result in a removal for more than ten days and was, therefore, not subject to appeal.   The second incident did involve removal for more than ten days.  The hearing officer concluded, in that case, that the district properly conducted the MDR concerning the second incident.  The MDR Committee properly considered the student’s IEP, teacher and parent input, and established disabilities of the student, as required by the IDEA.  According to the hearing officer, the MDR Committee properly determined that the behavior was not a manifestation of the student’s disability.

The hearing officer also determined that the requested homebound placement was not appropriate for the student.  The parent claimed that the student had debilitating allergies to the environment at school.  However, teachers and administrators never reported or noticed the student having problems with allergies.  The parent never provided medical information to the district confirming serious allergies to the school environment. The parent also never requested services from the student’s ARD Committee for the student’s allergies.  According to the hearing officer, a homebound placement was not appropriate for the student because the student did not perform well in academic settings where the student was asked to work independently.  The student was social and removal from the campus setting would not have benefitted the student’s social development.  In addition, the student’s adaptive behavior goals in the student’s IEP could not be implemented in a homebound setting.  The hearing officer concluded that the student’s existing program was appropriate and that the student received meaningful academic benefit under the program provided by the district.  The hearing officer denied all relief requested by the parent.

Comments: The hearing officer held that the ARD should look at the currently-identified disability in making the manifestation determination.  The parent argued that the manifestation should consider the effect of the student’s allergies and chemical sensitivities.  However, there was no iwndication in the student’s records, or any report from a qualified professional, that the student had allergies or chemical sensitivities that would rise to the level of a disability.