Revocation of Consent for Special Education and Section 504

To date, the Department of Education's Office of Civil Rights and and OSEP have not provided much guidance on how to handle the situation whereby parents have revoked consent for special education but are seeking accommodations through a Section 504 Plan. Under IDEA, when a parent revokes consent for special education the student no longer has a safety net when it comes to disciplinary procedures. A question then comes into play when they ask for the same disciplinary protections under Section 504. Since this is an unresolved legal issue, the School District of Oconee County will consider 504 eligibility on a case-by-case basis. It is expected that in most situations the 504 Plan would look very similar to the IDEA accommodations the parents declined.

Stating the Location of Services in an IEP

In T.Y. v. New York City Department of Education, 584 F. 3d 412 (2nd Circuit 2009), the parents of a student with autism sought tuition reimbursement for private school placement claiming several IDEA violations. One major violation they asserted was how the district failed to specify in the IEP which school their child would attend. District policy stated that a citywide placement offer was responsible for identifying a school capable of providing the most appropriate services. This typically took place after the IEP meeting was held. In this particular case, once the parents learned which school their child was supposed to attend they vistited the school then objected to the placement. The district offered another school but the parents rejected it without visiting then later enrolled their child in a school for autistic students and requested reimbursement. They claimed that the district committed a procedural violation by not adhering to 20 U.S.C. Section 1414(d)(1)(A) of the IDEA which indicates an IEP must include the "anticipated frequency, location, and duration of those services." In this case, the U.S. Court of Appeals, Second Circuit, noted "the term 'location' does not mean the specific school location, but the general environment of the overall program." Hence, there was no procedural violation of IDEA.

Should a Similar IEP Be Put In Place When a Student Is Retained?

For the majority of students with disabilities, the goals (and objectives if applicable) of an IEP should be written to target curriculum-based measures. The purpose is to provide access to the general curriculum. Furthermore, LEAs have been warned about the importance of writing IEPs that change over time as IEPs that are similar from year to year indicate a lack of progress. However, if a student repeats a grade it would substantiate having a very similar IEP with regard to goals as the student would be working on the same curriculum two years in a row. The important thing for teams to consider in this case is the documentation of progress from the previous year. If the student mastered some of the goals and objectives, they need to be replaced by ones that are more rigorous. However, if there are goals that were not mastered it would make sense to target them the following year if they were written based on a curriculum the student will be exposed to again.

Federal Court Rejects Parent's Request for Tuition Reimbursement

In LATHROP R-II SCHOOL DISTRICT, vs. WILLIAM GRAY, by and on behalf of his son
(Case No. 08-6040-CV-SJ-GAF
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI, ST. JOSEPH DIVISION), the parents of a student with autism were unable to obtain reimbursement for private tuition. Although the first panel found the student's IEPs were deficient due to a lack of baseline data in the development of goals and also stated the district failed to adequately address behavior, a federal district court reversed a lower court's ruling and determined reimbursement was not warranted. As soon as the district learned the student with autism was going to be transferring to their school it enrolled staff members in an autism training program and hired an occupational therapist who had prior experience working with children with autism. After enrollment, the district hired an autism consultant to conduct a functional behavioral assessment and make recommendations while staff members initiated strategies to address the student's behaviors. Over time, the student made progress in the area of speech and language mastering many goals and the team amended his IEP to include a special diet designed to decrease improper sexual and non-sexual behaviors. Furthermore, positive behavioral support strategies were utilized. Although the IEPs did lack starting-point data, the federal district court pointed out that the IDEA requires only "a statement of the present levels of educational performance" and "measurable annual goals and objectives".

Disability Services for Students in Postsecondary Settings

Yesterday Carol Miller (TriCounty Technical College) and Dr. Arlene Stewart (Clemson University) presented a workshop at Hamilton Career Center focusing on how to successfully transition students with disabilities to college life. Both stressed the importance of teaching self-advocacy skills in the K-12 setting and explained that disability services can vary significantly from one campus to another. One of the main differences between high school and college pointed out by Ms. Miller is that students are responsible for the management of their accommodations. Students arrange appointments with the Office of Disability Services...not parents. Furthermore, it is the student's responsibility to take Faculty Notification Forms to instructors and to initiate communication with faculty if there are problems. Accommodations must be requested by the student and once in place they must be requested for every test, in every class, at least a week in advance. Dr. Stewart shared that the three most important steps for a successful transition include educational planning, student participation in decision-making, and the development of self-advocacy skills. At Clemson University, typical in-class services for students with documented disabilities include extended time, low distraction space for testing, note takers/recording devices for lectures, use of a calculator/computer, and spelling/grammar consideration.

Another point that was made very clear is that just because an accommodation had been granted in high school, it may/may not be appropriate in college.

Assisting 504 Students Transition to Postsecondary Educational Settings

In Volume 25, Issue 11 of the Special Educator (December 4, 2009), school attorney Dave Richards with Richards, Lindsay and Martin in Austin, Texas offer guidance to districts on how to facilitate postsecondary transition for students served under a 504 plan. He stresses the importance of explaining to students that there are distinct differences between 504 services in the K-12 setting and in college settings. In postsecondary settings, students with disabilities are responsible for making college staff aware of their disabilities and accommodations. It is also the student's responsibility to provide requested documentation verifying the existence of a disabling condition and it must be provided at the student's expense. Furthermore, colleges are afforded the opportunity to use "reasonable accommodation" standards which means they can refuse to provide an accommodation if doing so would impose "an undue hardship on the operation of its program or activity."
Students with disabilities also need to be aware that the Section 504 regulation at 34 CFR 104.37(b) prohibits counselors from counseling students with disabilities to "more restrictive career objectives than nondisabled students with similar interests and abilities." Finally, districts can help students with disabilities transition more successfully by fostering self-advocacy skills. They should be encouraged to participate in or even lead their own 504 team meetings and they need to be able to communicate their accommodation needs clearly.

Reexamine 504 Plans When Problem Behaviors Escalate

In Volume 25, Issue 11 of the Special Educator (December 4, 2009), school districts are advised to reevaluate students' 504 plans when it appears they are not responding to previous discipline measures that have been imposed. Tips for consideration include:
1. Does medication impact behavior? Invite the school nurse or other medical professionals to the section 504 meeting if it is suspected that medication may be impacting behavior.
2. Conduct a Functional Behavior Assessment and develop a Behavior Intervention Plan (BIP) based on the results. Sometimes school personnel other than the classroom teacher are needed to observe and collect data.
3. Review the student's BIP regularly and make changes as needed.
4. Consider whether the behavior in question is a manifestation of the student's disability before the 10-day rule kicks in. Be proactive.
5. Make sure key players are involved in decision-making. If the behavior is taking place more often in a particular setting (PE for example), make sure the teacher or other school personnel most knowledgeable about the behavior are present to provide input at meetings.

IEP Teams Must Develop an Action Plan for the Provision of Services in IEPs

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. No-No #21 explains how not providing the services outlined in the IEP is the most serious substantive error that an LEA can make. IEP teams are advised to discuss "action plans" when developing IEPs. In the 2006 IDEA regulations, section 300.323 (d) was amended to retain the 1999 regulation section 300.342 (b) which requires public agencies to ensure that each regular teacher, special education teacher, related services provider, and any other service providers who are responsible for the implementation of a student's IEP, is informed of his or her specific responsibilities related to implementing the child's IEP and the specific accommodations, modifications, and supports that must be provided for according to the IEP. At the conclusion of an IEP meeting, it is good practice to summarize the services discussed and "who" is responsible for "what".

IEP Teams Need to Determine Understanding of Right and Wrong During MDRs for Students with ADHD

In Volume 25, Issue 11 of the Special Educator (December 4, 2009), there is an interesting article providing guidance to IEP teams when conducting manifestation determination reviews (MDRs) for students with ADHD. In two separate cases the school districts determined the students' behavior was not a manifestation of their disabilities. In Reeths-Puffer Schools, 52 IDELR 274 (SEA MI 2009), the administrative law judge (ALJ)ruled in favor of the school district when it determined that a student with ADHD told police he knew it was wrong to bring a knife with a four-inch blade to school and that he did it to protect himself. However, in San Diego Unified School District, 52 IDELR 301 (SEA CA 2009), an ALJ did not agree with the district and believed it was a manifestation of the student's disabling ADHD when the teenager served as the "middle man" when selling marijuana seeds. In this case the student had stopped taking his medication a few weeks earlier due to side effects. The evidence revealed "the impulsivity characteristic of the student's ADHD and his lack of medication led him to join the drug transaction without thinking of the consequences."
IEP teams are advised to consider the following when conducting MDRs:

• analyze all student records
• conduct interviews and include anyone who might have witnessed the student before or during the particular incident
• examine medical and disciplinary history
• learn behavioral motivations or goals
• determine the student's cognitive awareness of right and wrong
• determine if the student knew he/she was violating school policy
• determine if any planning was involved and over what period of time the planning process occurred
  

A Visit to Tamassee-Salem Elementary

Yesterday I was able to observe in a self-contained classroom at Tamassee-Salem Elementary. I very impressed with the neatness and organization of the classroom. The walls were visually appealing and displayed several educational posters to be utilized by the teacher, instructional aide, and students (e.g., number line from -35 to 180, cursive letters, fractions, diagraphs, writing tips, calendar activites, a pocket schedule for individual students and grade levels, and geometric shapes just to name a few). It was obvious that this was a positive behavior support classroom as a matrix for classroom expectations was posted in addition to a PBIS incentive bulletin board depicting a race car for each student containing incentives earned. Some students were grouped and others worked independently. The teacher followed her schedule and rotated groups and students to accommodate each one's learning objectives and needs. Every student was engaged and on task. The culture of this classroom was characterized by high expectations for learners and an urgency to take advantage of every educational minute. The teacher was effective, conscientious, and displayed genuine care and concern for her students. There was a clear desire for the teacher and her students to strive to achieve a title displayed on a classroom banner....WORLD'S GREATEST CLASSROOM!

LEAs Must Include Measurable Goals in the IEP

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. No-No #20 explains LEAs should provide training for school staff on how to write appropriate and measurable annual IEP goals as IEPs are often found lacking in this area. This is especially true for states that have opted to eliminate the inclusion of short-term objectives or benchmarks except for those students qualifying for alternate assessment. There have been a few cases whereby courts have determined annual goals were measurable because short-term objectives were included. Furthermore, simply adding "80% of the time" does not make the goal measurable. For example, measuring "Johnny will demonstrate appropriate behavior 80% of the time" would require someone to follow him around the entire school day and record every social act the child engages in to determine if he met his goal. A more specific and measurable goal might be "Johnny will follow all classroom rules not less than 40 school days during the last marking period of his IEP year."

LEAs Must Share All Relevant Evaluative Information with Parents

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. No-No #19 is failing to share all relevant evaluative information with parents as the failure to do so could be considered a procedural violation and might constitute a denial of a free and public education. At times, LEAs may be hesitant to share all information for fear of upsetting parents; however, all information must be shared to allow the parents to participate as equal and informed members in the development of an IEP. Although parents must be aware of all relevant evaluation data, there is no requirement for the LEA to provide the evaluation report in advance to parents. The US Department of Education commented in the 2006 IDEA that the Act "does not establish a timeline for providing a copy of the evaluation report or the documentation of determination of eligiibity to the parents and we do not believe that a specific timeline should be included in the regulations because this is a matter that is best left to state and local discretion."

Members of IEP or School Personnel Should Not Diagnose Medical Conditions or Suggest Medication Without the Credentials for Doing So

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. No-No #18 advises school personnel to not make statements like "it's obvious that your child has ADHD, ODD, and OCD. Take him to the doctor so that we can develop a plan for him and he can be put on medication. In fact, here's the card of someone I know who can do that evaluation." Rather than making a diagnosis of a medical condition without being qualified to do so, school personnel should make a proper referral for an evaluation. Furthermore, the 2004 IDEA provides that State Educational Agencies shall prohibit State and school system personnel from requiring parents to obtain a prescription for a medication covered under the Controlled Substance Act as a prequisite before they can bring their child to school, receive an evaluation, or receive services. Teachers and other school personnel are not prohibited from sharing classroom-based observations with parents or guardians regarding a student's academic and functional performance, or behavior in the classroom or school, or the need for an evaluation for special education and related services.

Making Unilateral Changes in Placement Through the Use of Suspension or Other Removal from the Current Placement

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. According to Weatherly, LEAs must be mindful when students with disabilities are suspended for over 10 days at a time and for more than 10 days at a time cumulatively in a school year when the pattern of removals constitute a "change in placement". Before changing the educational placement of a student with a disability the following must occur: (1) manifestation determination, (2) IEP team must plan for a functional behavioral assessment then develop a behavioral intervention plan based on the results, and (3) the IEP must determine what services are necessary for the student to participate in the general education setting and to make progress toward his/her IEP goals in the alternative education setting when the student is removed for more than 10 days. Other removals not designated "short-term suspensions" may also count toward the 10 day change in placement. For example, sending a student with a disability home to "cool down" or "home time-out".

IEP Teams Must Address Behavioral Strategies or Interventions as Part of the IEP When Needed

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. According to Weatherly, "The IDEA requires that any time a child exhibits behavior that impedes his or her learning or that of others, the IEP Team must consider appropriate strategies, including positive behavioral interventions and supports to address the behavior. Though the IDEA does not require that a behavior management plan be part of or incorporated into the IEP, where it is determined that a child needs a behavior managment plan, its development should be discussed as a support service or intervention at the IEP meeting. School staff should be trained to understand that this is not just an issue for students who are behaviorally or emotionally disabled. Rather, it is one for any student who has behavior that impedes learning."