WAS THE STUDENT PROVIDED APPROPRIATE ACCOMMODATIONS?
Case citation: Student v. Santa Fe ISD, Dkt. No. 129-SE-0213 (Hearing Officer Sharon M. Ramage, April 26, 2013) and Dkt. No. 172-SE-0313 (Hearing Officer Sharon M. Ramage, May 23, 2013).
Summary: The student qualified for special education services as a student with an Other Health Impairment related to Attention Deficit Disorder, Not Otherwise Specified (ADD). The student received instruction in the general education classroom. During the 2012-13 school year, the student’s accommodations included proximity to the teacher, extended time on exams and assignments, contact with parent when an assignment is not turned in, note-taking assistance, FM unit in all classes, and testing in a quiet place. The assistant principal also helped monitor the student’s assignment completion and prepare the student for tutoring. The student also had counseling goals related to organizational skills and assignment completion.
A dispute arose over what was considered “proximity” seating with the mother requesting that the student actually sit in the front row of each class. The student’s ARD Committee agreed to provide the mother with written notice when front-row seating was unavailable or inappropriate along with an explanation why.
The parent insisted on the student having the FM device in all of the student’s classes and questioned the methods used for note-taking assistance. The parent also expressed concerns over whether the classrooms were too loud to provide for the student’s quiet test-taking accommodation. The ARD Committee met to clarify the specific accommodations provided to the student, including preferential seating, note-taking, and extended time for assignments. The Committee determined that front row seating was not necessary, that varying note-taking assistance was appropriate, and that five extra days for assignments was too much time and detrimental to the student’s ability to keep up. The parent disagreed and filed a request for a due process hearing.
Ruling: The hearing officer determined that the district provided the student appropriate accommodations to address the student’s ADD. The parent failed to produce any evidence of procedural errors in developing and implementing the student’s individualized education program (IEP). The student’s IEP provided a free appropriate public education (FAPE) during the 2012-13 school year and the modifications to the IEP were reasonably calculated to provide the student a FAPE.
The student’s IEP was individualized based on the student’s assessment and performance. It properly targeted the student’s areas of weakness, including organizational skills and assignment completion. The Committee provided accommodations, assigned a teacher to monitor progress, and provided counseling and behavioral goals to the student. The student was excelling in student’s classes, often without using the available accommodations. The ARD Committee properly adjusted accommodations, such as seating assignments, note-taking methods, and time for assignment completion. The hearing officer determined that the district properly implemented the student’s accommodations and that the student made academic progress under the student’s IEP. Thus, the hearing officer denied all relief requested by the parent. Student v. Santa Fe ISD, Dkt. No. 129-SE-0213 (April 26, 2013).
Following that order, another dispute arose over whether the student should be re-evaluated by the district. The parent refused to consent to the evaluation and the district sought an order overriding the lack of parent consent. The record showed that the student was not experiencing any stress related to school, which was the previous concern leading up to his placement into special education. Instead, the student was excelling academically and behaviorally without accessing special education accommodations, and had made significant progress on the student’s counseling goals. Thus, the district sought to determine whether the student continued to need special education and related services.
The hearing officer agreed with the district that a reevaluation was warranted for the district to determine eligibility and educational need based on current data. The district was obligated to provide the student a FAPE based on current assessment and performance. When a parent refuses to consent to an evaluation, the district may seek an order overriding the parent’s lack of consent. The hearing officer concluded that additional evaluation data was needed as part of the district’s ongoing obligation to the student to determine the student’s present level of educational performance and need. The hearing officer, therefore, ordered the parent to cooperate with the district so that it could conduct a full individual evaluation. Student v. Santa Fe, Dkt. No. 172-SE-0313 (May 23, 2013).
Things to Remember: Notice: as the student’s situation changes, the district makes adjustments. Here, the district effectively monitored student performance, leading to the request for a new evaluation, which the hearing officer agreed was proper.
WAS THE DISTRICT’S ELIGIBILITY DETERMINATION PROPER?
Case citation: Student v. Copperas Cove ISD, Dkt. No. 208-SE-0413 (Hearing Officer Gwendolyn Hill Webb, July 12, 2013).
Summary: The student attended school in the Copperas Cove Independent School District and was eligible for special education as a student with autism and a speech impairment. The student had been diagnosed with “high functioning autism.” The student attended school in the general education setting and was provided occupational therapy and speech therapy. The district conducted psychological, speech, and occupational therapy assessments. The parent later request independent educational evaluations (IEEs) in those areas.
The district held a brief ARD meeting in February of 2013, to address the parent’s behavioral concerns, especially a recent behavioral incident by the student. The ARD had the counselor speak to the student about controlling anger and refraining from saying inappropriate things. The district also provided a number of behavioral supports and social skills training.
The student received an IEE from a licensed specialist in school psychology and another from a neuropsychologist. When the student’s ARD Committee met to discuss the results of the IEEs, it determined that the student did not exhibit a need for special education services and that the student’s needs could be addressed through Section 504 accommodations in the general education setting. The parents disagreed and requested a due process hearing.
Ruling: The hearing officer ruled in favor of the parent. According to the hearing officer, the district did not provide an appropriate re-evaluation of the student to support a determination that the student no longer met eligibility criteria as a child with a disability in need of special education. The district failed to engage in a collaborative process required to determine the student’s current levels of performance, function, and adaptive behavior. The district also did not take into account the student’s individual needs in the areas of behavior and social skills.
The hearing officer determined that the student needed a functional behavioral assessment (FBA) and IEEs for in-home training, assistive technology, and speech. The parent, therefore, was entitled to IEEs at the district’s expense. Further, according to the hearing officer, the student’s teacher was not properly trained in methods for addressing the student’s behavioral needs associated with autism, including training in Applied Behavioral Analysis (ABA) therapy. In addition, the general education teacher did not provide needed instruction to the student in behavior management. The district’s evaluation did not provide an appropriate basis for deciding that the student no longer met eligibility criteria as a student in need of special education services. The hearing officer, therefore, ordered the district to provide requested IEEs, an FBA, ABA training, and compensatory services.
THE STUDENT WAS ENTITLED TO A PRIVATE PLACEMENT
Case citation: Student v. Fort Bend ISD, Dkt. No. 076-SE-1112 (Hearing Officer Stephen Webb, April 3, 2013).
Summary: The student attended school in the Fort Bend Independent School District and was eligible for special education services as a student with an Emotional Disturbance (ED) and Other Health Impairment (OHI). The student had Attention Deficit Hyperactivity Disorder (ADHD) and depression, among other things. The district provided a Full Individual Evaluation (FIE) which revealed “severe depressive symptoms in areas associated with a lack of engagement in pleasant activities, reduced motivation and effect, along with irritability, boredom and complaints of significant physical illness that may be associated with lethargy and somatic components.” The student also had a history of failing grades, poor participation in classroom activities, and frequent illness. However, the student was able to mask symptoms of anxiety and depression with teachers by presenting a deceptively happy affect. Teachers considered him a leader at school and popular among the other students, but unmotivated to complete schoolwork.
On August 23, 2012, the student’s Admission, Review and Dismissal (ARD) Committee reviewed the FIE, a psychological, and OHI evaluations, all dated August 10, 2012, as well as school records, and parent information. Based on the information presented, the student’s ARD Committee concluded that the student’s behavior impeded the learning of the student and others; significantly interfered with the student’s ability to meet general academic mastery levels; and affected the student’s involvement and progress in the general curriculum. A Behavior Intervention Plan (BIP) was developed to address the student’s failure to complete school work. The ARD Committee placed the student in the general education setting with in-class support services provided by a special education teacher. The ARD also provided the student with psychological services for sixty minutes, one time per nine weeks.
The parents later withdrew the student from the district, and requested an ARD Committee meeting in November of 2012, to request reimbursement for the student’s private placement. On November 19, 2012, the ARD Committee reviewed the student’s FIE and other assessments, but declined to change the student’s program or authorize reimbursement for the private placement. The ARD meeting ended in disagreement. The parents requested a due process hearing urging their request for a private, residential placement at district expense.
Ruling: The hearing officer held that the student was entitled to a private placement for one year. However, the district was responsible for paying only those costs associated with the student’s educational services. The record demonstrated that the district did not have a full opportunity to develop an appropriate program for the student. The student was admitted to special education for the first time on August 23, 2012. Prior to that admission, the district served the student strictly through a §504 Committee. When the student was admitted to special education, the ARD Committee determined that another ARD should be scheduled to monitor transition services. That ARD meeting was held on September 17, 2012. Shortly thereafter, the parents unilaterally withdrew the student and sought a private placement. In addition, the student’s parents did not keep the district apprised of the student’s emotional condition that led to the parents’ unilateral placement. The parents did not consult with anyone with the district or the ARD Committee before withdrawing the student. As a result, the student had completed little more than a few weeks of the 2012-13 school year, with absences, before being withdrawn. According to the hearing officer, there was insufficient time to implement the IEP that had been developed.
The hearing officer, nevertheless concluded that the private setting was an appropriate educational placement that provided the student an opportunity to gain psychological and educational skills needed to receive a FAPE, at any campus setting. The school helped children struggling with attachment, trauma, and emotional regulation issues. The goal of the program was to improve the brain functioning of the children so that they could get along with other people and do well in school or their chosen profession.
According to the hearing officer, the IEP developed by the district was not appropriate, particularly in the areas of educational setting and related counseling services, and was not designed to provide the student FAPE. Student’s ARD Committee focused on the student’s academic schedule with insufficient focus on the kind and amount of psychological counseling that would allow the student to derive an academic benefit. Without interventions that were designed to address the student’s unique emotional needs and depression, the student could not receive a FAPE.
The parents also proved that the student required a private school at public expense in order to receive FAPE. The private program was an appropriate setting, but the district was only required to reimburse educational expenses. Furthermore, because the district was not given a fair opportunity to devise an appropriate educational placement for the student, the hearing officer awarded placement for only one year. The ARD Committee was ordered to monitor the student and review the placement at the end of the year.
THE PRIVATE PLACEMENT WAS APPROPRIATE FOR THE STUDENT
Case citation: Student v. Houston ISD, Dkt. No. 038-SE-1012 (Hearing Officer Sharon M. Ramage, April 5, 2013).
Summary: The student was identified as a student with autism and a speech impairment. The student’s IEP included academic, behavioral, and social skills goals. The student received Applied Behavioral Analysis (ABA) and the district provided some ABA training to the student’s teacher. The student’s schedule called for minimum unstructured time and a specified staff-to-student grouping ratio. The ratio was based on the student’s functioning, need for behavioral accommodations across settings, and issues with transitions. The student had a history of behaviors that included being off-task, leaving the assigned area, noncompliance, disruptions, emotional outbursts and tantrums, defiance, and negative physical behaviors. The most problematic behaviors were that the student would get off task and would create fantasy situations to escape and avoid reality.
The student was placed in the SLC classroom. Over the 2010-11 and 2011-12 school years, the number of students in the SLC classroom continually increased. The student’s behavior and progress on academic and behavioral goals declined. The parent communicated concerns over the state of the SLC classroom and her belief that the district was not properly implementing the student’s behavior plan. The student’s ARD Committee later eliminated from the student’s IEP the need for a limited student-grouping ratio. Progress reports showed that the student did not make meaningful progress, and there were no progress reports after February 17, 2012. In addition, the district stopped providing the parent regular communication logs.
The student’s self-injurious and aggressive behaviors began to increase and the student did not progress on the goals set out in the student’s IEP. At one point, because the student could not master a goal related to ordering and comparing whole numbers, the teacher unilaterally changed the goal without ARD Committee approval. The district proposed an extended school year program (ESY) to address the lack of progress on goals, but the parent requested a private ABA program instead.
At the beginning of the 2012-13 school year, the parents enrolled the student in the district but notified the district of their intent to enroll the student in a private placement. The student’s ARD Committee implemented the same IEP adopted the previous year. The parents withdrew the student and the district held an annual ARD Committee meeting during which it developed new goals and objectives for the student, and recommended accommodations. The IEP did not include a specified staff-to-student ratio. The parents rejected the program and continued the student’s private placement. The parents also requested reimbursement for the private placement.
Ruling: The hearing officer determined that the district denied the student FAPE and ordered the district to reimburse the parents for the private placement. The failure to include the specified student-grouping ratio resulted in impeding the student’s access to a FAPE and a denial of educational benefit. The student’s decline in progress coincided with an increase in the class size and removal of the required ratio. The decision to remove the ratio was based on campus concerns, rather than the individual needs of the student. The record showed further that the district failed to adequately track the student’s progress and provide progress reports to the parents.
The student’s educational program denied the student FAPE. The student did not make meaningful academic or behavioral progress. According to the hearing officer, services were not provided in a collaborative manner by key stakeholders. Because the student’s program was not appropriate when the parents withdrew the student and the private placement was appropriate, the hearing officer ordered the district to reimburse the parents for the private school expenses incurred during the summer of 2012 and the 2012-13 school year. The hearing officer also ordered the district to make a plan for the student’s transition back to the school district.
DID STAFF IMPROPERLY RESTRAIN THE STUDENT?
Case citation: Student v. Ysletta ISD, Dkt. No. 009-SE-0912 (Hearing Officer Deborah Heaton McElvaney, April 27, 2013).
Summary: The student had a history of severe behavior problems, including tantrums, aggressive behaviors such as hitting, kicking, and throwing objects, among other things. A psychological evaluation done during the 2009-10 school year at a different school district revealed that the student had severe Attention Deficit Hyperactivity Disorder (ADHD), oppositional defiant disorder, some emerging conduct disorder problems, and probable depression, all of which interfered with student’s educational progress. Thus, the student met eligibility criteria for special education services as Emotionally Disturbed (ED). The student also had an auditory impairment (AI). The assessors recommended that the student be placed in a structured placement with more individual teacher support and supervision and that the student’s ARD Committee develop an appropriate behavior intervention plan (BIP) to target inappropriate behaviors with positive reinforcement.
The student enrolled in Ysleta Independent School District in August of 2010. On August 27, 2010, the student’s ARD Committee developed an interim placement in a behavior intervention class (BIC). The Committee provided related services addressing the student’s auditory impairment, as well as psychological services. The student’s ARD Committee later reviewed an FIE, as well as other records from prior districts and continued the student’s classifications of ED, OHI, and AI. The ARD Committee determined that the student could not follow the district’s Disciplinary Management Plan and would need a BIP. The Committee discussed negative behaviors, and various positive reinforcements to correct the student’s behavior, such as allowing computer time, games with teachers, and access to the Boys’ Town Store.
During the 2011-12 school year, the student continued to engage in negative behaviors. The student’s parent refused to administer any medication to address the student’s ED and ADHD disabilities and did not allow discussion of the student’s medication during ARD meetings. The student’s behavior was so aggressive that staff had to restrain the student during the 2011-12 school year. In March of 2012, the district’s Licensed Specialist in School Psychology (LSSP) performed a functional behavioral assessment (FBA) which revealed aggressive behaviors such as throwing things, destroying school materials, and threatening others. Notwithstanding those problems, the student was academically sound and capable of performing at grade-level. The student also passed grade-level curriculum.
During the fall of 2011, the student was restrained nine times, and during the spring of 2012, the student was restrained six times. The parent claimed to have witnessed one of the retraints. She believed the principal restrained the student by holding the student’s wrists and ankles, in a “hogtied” position. However, others who witnessed the restraint denied that the principal was involved and that the student was restrained face down or “hogtied.” Others said that a teacher restrained the student to prevent the student from kicking and hitting other students. It was later established that the parent did not actually see the incident, but got her information from the student. The student had a red mark on the student’s face but the nurse checked the student out and found the student to be okay. Following this incident the mother requested a due process hearing raising numerous substantive and procedural errors over the development and implementation of the student’s program. The main issue, however, was whether the district improperly restrained the student.
Ruling: The hearing officer held that the district provided the student a free appropriate public education, and found no substantive or procedural violations. The hearing officer first determined that the one-year statute of limitations applied in this case, barring some of the parent’s claims that arose more than one year before she filed the request for a due process hearing.
With respect to the remaining claims, the hearing officer held that there was “very little evidence to support any of the seventeen (17) issues asserted by Student against YISD.” Further, according to the hearing officer, the evidence was insufficient to show that the restraint was inappropriate. “Restraint” is defined in 19 Tex. Admin. Code § 89.1053(b)(2) as “the use of physical force or a mechanical device to significantly restrict the free movement of all or a portion of the student’s body.” Restraints are authorized for use in an emergency, which is defined as “a situation in which a student’s behavior poses a threat of (A) imminent, serious physical harm to the student or others; or (B) imminent, serious property destruction.” 19 Tex. Admin. Code §89.1053(b)(1). The parent and district provided conflicting testimony over the one restraint that was at issue in this case. The parent claimed that the principal held the student down in a “hogtied” position. District staff testified that the principal did not restrain the student, but that a teacher and another staff member restrained the student for hitting and kicking other students, but that the student was not in the “hogtied” position. Based on the documentary evidence concerning the incident, the hearing officer held that the district did not inappropriately or unlawfully restrain the student. Further, the parent provided no evidence of any other restraint. Thus, the hearing officer denied the parent’s claims concerning restraints used on the student.