On October 9, 2018, the United States Supreme Court  denied a Petition for a Writ of Certiorari filed by the parents of a West Hartford student eligible for special education and related services, thus concluding over four years of litigation surrounding the provision of a free appropriate public education (“FAPE”), and letting stand the 2018 decision of the Second Circuit Court of Appeals.  The Petition, originally filed in June 2018, requested  that the Supreme Court  review the Second Circuit’s decision in Mr. P. v. West Hartford Bd. of Ed., 885 F.3d 735 (2d Cir. 2018), which held that the West Hartford school district appropriately educated a high school student with an Emotional Disturbance in an alternative high school program called STRIVE, which allowed him to satisfy the district’s high school graduation requirements, and also included various opportunities to develop his postsecondary education, employment, and independent living skills.  The Second Circuit further determined that the district proposed an appropriate postsecondary transition program called ACHIEVE, which would also have provided the student with a FAPE.  Finally, in affirming a September 2016 district court decision in favor of the school district, the Second Circuit held that its earlier “meaningful educational benefit” FAPE standard was consistent with the new FAPE standard articulated by the Supreme Court in Endrew F. v. Douglas Cnty. Sch. Dist., 137 S.Ct. 988 (2017), so the case did not require remand to the lower court for reconsideration under the newly articulated standard.  

Despite the fact that the petition for certiorari was declined by the Supreme Court, the arguments advanced by the parents in this case are interesting and merit critical examination by those working in the field of special education.  The language used by the petition is alarming in many respects, arguing that, while students with reading disabilities have been awarded specific evidence-based reading programs in order to address their reading disabilities, and students with Autism have been awarded ABA (Applied Behavioral Analysis) programs to address their disabilities, students with mental health disabilities are overlooked in developing and awarding them programs using specific evidence-based methodologies, leading, according to the plaintiffs in this matter, to increasing levels of suicidal and homicidal behavior, up to and including school shootings.  The merits and causal connections between these disabilities and outcomes are, of course, matters of intense debate. However, we predict this will not be the last time that an argument is advanced that a student requires a higher level of intensity in special education programming to address severe mental health needs in order to avert a personal or public safety crisis. 

In petitioning the Supreme Court for review, the parents “[sought] clarification that under the IDEA, students with mental health needs … are entitled to same standard of FAPE as other disability categories.”  In other words, the parents asked the Court to clarify that students with emotional disturbances are entitled to “progress in their actual identified category of disability,” which would enable an assessment of whether the student made progress under the Endrew F. standard “in light of his unique needs.”  Specifically, the parents asserted that the Second Circuit erred in relying upon the student’s adequate grades and standardized test scores as evidence of progress, while ignoring his alleged lack of progress toward his “mental health needs” and increasing social, emotional and behavioral issues.  This, of course, raises the question as to what constitutes programming that “addresses” a child’s “mental health needs.”  As pointed out by the West Hartford briefs in this case, there is no IDEA category for “mental health needs,” but rather, a child qualifies under the category of “Serious Emotional Disturbance.”  And the FAPE standards applicable under IDEA require that the unique needs of the student be identified and goals and objectives written so as to allow the child, with appropriate supports and services, to make progress on the identified goals and objectives.  

Some children will progress from grade to grade while meeting grade-level standards and will receive a regular high school diploma.  Other children will receive special education services until they “age out” at age 21, but will not be able to meet the standards set for their age-appropriate peers.  It is beyond dispute that children with disabilities often suffer from medical setbacks during the course of their educational careers that take many forms, from seizures and degenerative conditions, to stroke, to car accidents and traumatic brain injuries.  Sometimes a child’s mental health deteriorates over time, through no fault of the school district.  School districts are not equipped to “treat” physical or mental illnesses the way that doctors and hospitals do, so that cannot be the FAPE standard as applied to the IEP.  This argument, however, asks that we examine where the boundaries are between “treating” mental health issues and providing appropriate educational services to a student with mental health issues, and seems to come down on the side that we should seek out the mental health equivalent of a Wilson Reading Program or ABA services for inclusion in the student’s IEP, rather than providing what the plaintiffs dismissively see as undifferentiated “school counseling” services.  We defer to the educational experts on this. Are there such services and supports? What do they look like for students with mental illness?  If we can’t “cure” the child’s mental illness through the IEP, what tools can we give the child to use in coping with the effects of the illness, and getting themselves back on track if they suffer an episode or a setback?

Stepping back from the legal analysis, we can all agree that the IDEA strives to improve outcomes for the futures of all students with all categories of disability.  The question becomes, in each individual child’s case, what is a reasonable outcome to achieve by the time that their IDEA mandated services come to an end?  What role does special education services play in achieving that outcome, as contrasted with mental health treatment provided outside of (and hopefully in collaboration with) school?  What do we, as a society, provide for students leaving school at the end of their IDEA mandate in terms of access to mental health treatment that helps them to continue the gains achieved while they were in school, and also to catch them when they suffer setbacks after graduation?

Ultimately, the Supreme Court denied review of this case, allowing the Second Circuit decision in favor of the school district to stand.  While the Supreme Court does not explain its reasoning, it might reasonably be inferred that it did not see the need to weigh in on this particular issue at this time, especially since the standard used in the Second Circuit pre-Endrew F. was already a higher standard of “meaningful educational progress”.  One infers that the Supreme Court agreed with the Second Circuit’s assessment that no corrective action was required at this time.  It might also be reasonable to assume that since the Supreme Court just recently issued the Endrew F. decision, it is content to wait and see how the implications of this decision play out for some period of time before again wading into IDEA jurisprudence with additional guidance in this complex legal area.  While we wait for additional guidance from the Supreme Court, we might be well-advised to keep in mind the arguments advanced in this case and see that all students with disabilities have the benefit of evidence-based educational practices, including those with mental health diagnoses.

Attorneys at Berchem Moses PC are available to consult school districts regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com.

The United States Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) recently issued several policy guidance letters addressing important issues related to state and districtwide assessments, preschool programming, and disagreements during Planning and Placement Team (PPT) meetings, known under federal law as IEP team meetings.  While informal and nonbinding, these concise and digestible policy letters provide useful insight into OSERS’ interpretation of the statutes and regulations prescribing school district obligations related to mandatory assessments, preschool programming, and record keeping.

First, in Letter to Kane (Apr.18, 2018), OSERS addressed the potential obligation of school districts to provide compensatory special education and related services to students with disabilities who may or may not participate in required state or districtwide assessments.  Specifically, OSERS was asked to clarify whether school districts are obligated to provide compensatory services to make up for special education and related services missed (1) during the time a student participates in required state or districtwide assessments; and (2) when a parent withholds consent for such assessments and keeps the student home from school while the assessments are being administered.

OSERS recognized the importance of state and districtwide assessments, which are integral aspects of educational accountability systems, and which are used to measure student progress for the purposes of promotion, graduation, and access to educational services.  OSERS also highlighted the general requirement that children with disabilities be included in all state and districtwide assessments, while emphasizing that the IEP team will address the manner in which a student participates in such assessments.  A Student’s Individualized Education Program (IEP) will, for example, specify whether the student will take alternate assessments, or whether the student will receive any accommodations during such assessments.

Importantly, OSERS clarified that, generally, a special education or related service missed due to participation in required scheduled assessment will not constitute a denial of a Free Appropriate Public Education (FAPE), and the school district will not be required to make up the missed service.  Additionally, for a student who is absent from school on testing days due to a parent’s choice, the school district will not be obligated to make other arrangements to make up the missed service.

In Letter to Carroll (Apr. 19, 2018), OSERS addressed whether a school district could unilaterally schedule a full school week of special education and related services for a preschool student, despite knowing from the outset the student would not regularly attend school five days per week.  The specific inquiry involved a preschool student whose IEP specified 1,500 minutes of specially designed instruction per week, divided equally between a special education class and a general education class.  During the IEP team meeting in which the IEP was developed, no particular schedule was agreed upon, but the parents informed the IEP team that the student would attend the preschool program only three days per week so as to allow for participation in other activities and services outside of the school setting.  

Because it was unlikely that the full 1,500 minutes of weekly instruction could be provided in only three school days, the school district inquired whether it could unilaterally implement a schedule after the PPT meeting that provided for less than the 1,500 minutes.  OSERS noted that an IEP must identify the specific amount of special education and related services that a student will receive so that the school district’s commitment of resources is clear.  OSERS then emphatically stated that, under the IDEA, a school district cannot unilaterally change the amount of services included in a preschool student’s IEP.  As such, if the school district wanted to revise the amount of instruction provided for in the student’s IEP, it would have to engage the parents in further discussion, even if such discussion took place outside of a PPT meeting.  If the parents and school district agreed to change the student’s IEP, the changes would also have to be memorialized in an amended IEP following appropriate amendment procedures.

The form of the district’s inquiry is somewhat puzzling, since it seems as though the district could have solved the problem by preparing a schedule of services that would comply with the requirements of the IEP, and then simply noting when the parent chose to make the student available for the services that had been scheduled, and when the student was not made available.  Nonetheless, if a district wishes to reduce the amount of services available to a student through the IEP, proper procedures need to be followed to either amend the IEP or reconvene the meeting and have further discussions with the parent.

Finally, In Letter to Zirkel (Apr. 19, 2018), OSERS addressed the status of dissenting opinions from IEP team members.  Specifically, OSERS was asked whether it is permissible for a teacher or other district member of the IEP team to enter a dissenting opinion on a student’s IEP or elsewhere in the student’s record.  An example was provided involving a teacher who objects to the placement of a student in his or her classed based on behavioral and/or academic issues, while the PPT ultimately determines that placement in the teacher’s class is appropriate.

OSERS noted that the Individuals with Disabilities Education Act (IDEA) does not specifically address the issue of disagreements among school team members during IEP team meetings, except in the context of students suspected of having specific learning disabilities.  Specifically, 34 C.F.R. § 300.311(b) requires a team member who disagrees with an evaluator’s conclusions regarding a student’s potential learning disability to submit a separate statement reflecting his or her own conclusions.  As previously articulated in Letter to Anonymous (Oct. 29, 1996), however, an IEP team is not responsible for implementing the recommendation of an individual team member.

Due to the lack of a definitive authority on the subject, OSERS deferred to state and local educational agencies, which may maintain policies and procedures regarding the documentation of dissenting opinions among school team members during IEP team meetings.  Neither the Connecticut General Statues, the implementing Regulations, nor any other State authority addresses the extent to which such dissenting opinions must be documented in a student’s IEP or elsewhere.  As such, district personnel should determine whether their board of education maintains any relevant policies or procedures regarding disagreements during PPT meetings.  Importantly, however, during certain PPT meetings, such as manifestation determination meetings, the dissenting opinions of team members regarding issues such as whether a student’s behavior constituted a manifestation of his or her disability should be carefully documented in the worksheets memorializing the PPT’s ultimate decisions and recommendations. 

The full texts of the OSERS policy guidance letters, as well as additional OSERS resources, are available via the following web link:

https://sites.ed.gov/idea/policy-guidance/ 

As previously stated, policy guidance letters issued by federal and state agencies and their subdivisions, including the OSERS letters discussed herein, are informal, nonbinding, nonbinding, and do not establish a policy or rule that would apply in all circumstances.  School district administrators should consult with legal counsel as needed to resolve matters related to special education, including but not limited to state and districtwide assessments, disagreements during PPT meetings, and preschool programming.

Attorneys at Berchem Moses PC are available to consult school districts regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney

School is back in session once again, and districts are confronting the perennial challenge of educating students with a multitude of physical, cognitive and behavioral limitations. Among these conditions, Attention Deficit Hyperactivity Disorder (ADHD) stands out in both its ubiquity and its potential to thrust parents and school districts into conflict over appropriate educational programming. In fact, the United States Department of Education’s Office for Civil Rights (OCR) has received over 2,000 complaints involving allegations of discrimination against students with ADHD in the past five years alone. The staggering number of complaints is testimony to both the elusive nature of ADHD and the difficulties school districts are experiencing in identifying, evaluating, and providing appropriate programming to students with the disorder. Absent clarification of the rights of students with ADHD and the responsibilities of the school districts that serve them, the surge in complaints and litigation is unlikely to subside in the foreseeable future.

Fortunately, school districts are beginning the new school year armed with guidance for meeting their obligations to students with ADHD under federal law. Over the summer, the OCR published a Dear Colleague letter highlighting the recurring problems school districts are facing with respect to ADHD and emphasizing the need for school districts to tailor their responses in compliance with Section 504 of the Rehabilitation Act of 1973. The letter was accompanied by a comprehensive Resource Guide outlining the applicable federal law, providing step-by-step instructions for compliance with substantive obligations, and reminding school districts of their duty to notify families of their rights and procedural protections. These publications can aid school districts in revising their policies and procedures in accordance with federal law, which will likely result in better programming for students with ADHD and a reduction in complaints and litigation.

The OCR publications detail the bases for many of the complaints by families of students with ADHD. These allegations include the failure of school districts to identify and properly evaluate students with ADHD, to provide appropriate regular or special education and related services, to educate teachers and staff regarding students’ needs, and to notify families of their procedural and substantive rights under Section 504.

School districts are reminded of their “Child Find” obligation to identify and locate students suspected of having “disabilities” under Section 504. A student has a “disability” if she has a physical or mental impairment that substantially limits one or more major life activities, and is also protected from discrimination if the student has a record of such an impairment, or is regarded as having such an impairment. The OCR emphasizes some examples of major life activities that could be substantially limited by ADHD, including concentrating, reading, thinking, and functions of the central nervous system/brain. Once a student is identified as possibly having a disability, school districts are obligated under Section 504 to conduct an evaluation at no costs to the student’s family. The evaluation must be conducted by appropriate personnel, without undue delay, and without regard to the effects of “mitigating measures” such as medication. Importantly, OCR states its own presumption that a student diagnosed with ADHD is substantially limited in one or more major life activities, and thus qualifies as a student with a disability under Section 504 unless proven otherwise. Overall, the definition of “disability” is to be construed broadly, and the determination of whether a student has a disability should not demand extensive analysis.

A student with a disability under Section 504 is entitled to a free appropriate public education (FAPE) comprised of regular or special education and related and/or supplementary services, modifications, and accommodations. FAPE must be individually tailored to a student’s particular needs, and provided without inappropriate consideration of administrative and financial burdens. With respect to ADHD, OCR cautions against the “blanket” provision of boilerplate services to any student diagnosed with the disorder. Instead, a “Section 504 plan” should be developed and implemented by a team of administrators and staff knowledgeable of the student’s particular needs. For example, a student with ADHD-predominantly inattentive type may supports such as prompting and redirection, while a student with ADHD-predominantly hyperactive/impulsive type may require a smaller classroom setting and reduced auditory or visual stimulation. The Section 504 plan should be disseminated to all of the student’s teachers in order to ensure uniform and consistent implementation.

Finally, school districts are obligated to notify families of their rights and procedural safeguards under Section 504. If a parent believes her child has a disability, she has the right to request an evaluation at district expense. If the school district refuses to conduct an evaluation, an explanation must be provided, and the parent must be able to challenge the district’s decision. Similarly, a parent must be able to challenge the determination that a student does not qualify as having a disability under Section 504. Finally, if a parent disagrees with the programming implemented for her child, she must be able to challenge the adequacy of the programming before a neutral hearing officer.

The OCR Dear Colleague letter and Resource Guide should be embraced by all school districts as the new school year begins. The existing confusion surrounding ADHD and the obligations of school districts under federal law indisputably drains educational resources and has resulted in a plethora of complaints and litigation. School districts are encouraged to heed the instructions and suggestions detailed in the OCR publications, and to revise their policies and procedures related to students with disabilities accordingly. In doing so, school districts will not only preserve scarce resources and avoid costly litigation, but more importantly, they will ensure that students with disabilities such as ADHD are being provided appropriate programming and afforded an equal opportunity to receive a quality education.

The education team at Berchem, Moses & Devlin, P.C. offers representation and guidance to school district clients across the State of Connecticut. For inquiries regarding Section 504 compliance and more, visit http://www.bmdlaw.com, or email us at mlaubin@bmdlaw.com.

On November 16, 2015, the Department of Education issued a Dear Colleague Letter providing guidance concerning the alignment of an individualized education program (IEP) with the state standards for academic grade-level content. The Department of Education stated that in adhering to federal laws requiring that all students within a state have the same academic content and standards for achievement, an IEP for an eligible child with a disability under the Individuals with Disabilities Education Act (IDEA) must therefore align with the state academic content standards for the particular grade in which the student is enrolled.

Under the IDEA, an eligible child with a disability must be provided a free appropriate public education (FAPE). Accessing FAPE includes providing a child with a variety of services designed to meet their specific educational needs presently and in the future, as well as prepare the child for future employment opportunities and independent living situations. In order to achieve FAPE and provide these necessary services for a disabled child, the IEP must be designed to allow the child to access, be involved, and make progressions within the general education curriculum set forth by their state.

Part B of the IDEA however references “specially designed instruction.” Specialized instruction allows an eligible disabled student to access the general curriculum by adapting the content and teaching methods to best serve the unique needs of the student. This requires the IEP team to make individualized decisions regarding what services and methods of instruction will best allow the student to reach the goals set forth by their IEP in conjunction with state standards.

The Department of Education did acknowledge that there is a small population of children with significant cognitive disabilities that may prohibit their achievement from being measured in comparison to the state standards. In these instances, alternative academic achievement standards may be created. These standards must still align with the state’s academic content standards, however the alternative standards can take other forms. For example, in order to reach a goal of performing the entire activity at grade level, an alternative standard could be requiring mastery of the introductory and pre-requisite skills required to perform the activity. The Department of Education suggests that the IEP team create ambitious goals that may seek to close the gap between the child’s current academic level and the grade-level standard the state sets.

According to the U.S. Department of Education, research has shown that when provided with appropriate instruction and services, children with disabilities can make great academic progress and strive toward grade-level general curriculum achievement. It is therefore very important that an IEP team carefully evaluate the unique needs of a particular child and create an IEP with appropriate goals and instruction methods to achieve those goals outlined while adhering to state academic content standards.

On October 23, 2015, the Department of Education issued a Dear Colleague Letter providing guidance on the unique educational needs of students with dyslexia, dyscalculia, and dysgraphia. Despite generalized hesitancy to use these specific conditions in the evaluation and individualized education program (IEP) process, the U.S. Department of Education stated that there is nothing in the Individuals with Disabilities Education Act (IDEA) or the regulations of the department that would prohibit using these conditions in IDEA evaluations, eligibility determinations or IEP documents.

When determining eligibility, the comprehensive evaluation must include a variety of assessment tools and strategies to ascertain all relevant material regarding the functional, development, and academic information of the student. In conducting this assessment it is therefore very important to understand the nature and extent of the specific disability and the subsequent needs of the student.

Students with dyslexia, dyscalculia, and dysgraphia have unique educational needs. Inclusion of these conditions on an IEP is of great benefit to educators as it affords them an opportunity to understand the condition underlying the disability determination. This allows for appropriate accommodations, modifications, and support systems to be implemented in accordance with the IEP in order to best serve these unique needs and reach the goals listed on the IEP.

While there have been requests to create a comprehensive guide for common accommodations for specific learning disabilities such as these, the IDEA does not provide this guidance. Instead the Department of Education suggests seeking assistance from other venues such as the National Center on Intensive Intervention, Center for Parent Information and Resources, and National Center on Accessible Educational Materials.

In recent years the Connecticut General Assembly has passed laws specifically pertaining to dyslexia as a learning disability. In Connecticut, dyslexia is now considered a “primary disability” on the standardized IEP form utilized by planning and placement teams throughout the state. Also, the Connecticut Department of Education is now responsible for providing teachers, boards of education, and parents or guardians information regarding dyslexia and how to detect and recognize the disability. While dyscalculia and dysgraphia are not yet recognized as primary disabilities in Connecticut, the guidance issued by the U.S. Department of Education suggests that they are conditions that should be disclosed in both eligibility determinations and IEP documents to assist educators in better serving the distinctive educational needs of students with these particular conditions.

In a decision issued July 24, 2014, Senior United States District Court Judge Jack Weinstein has authored an opinion proposing a new standard for evaluating whether the IEP of a special education student who has experienced bullying provides that student with a free appropriate public education (FAPE).  In T.K. v. New York City Dept. of Educ., 2014 U.S. Dist. LEXIS 101277 (E.D.N.Y. 7/24/14), Judge Weinstein offered that there is a new “FAPE Bullying Standard”: “a disabled student is deprived of FAPE when school personnel are deliberately indifferent to or fail to take reasonable steps to prevent bullying that substantially restricts a child with learning disabilities in her educational opportunities.”  The opinion clarifies that the conduct “does not need to be outrageous in order to be considered a deprivation of rights of a disabled student.  It must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment.”  Furthermore, the “rule does not require that the bullying would have prevented all opportunity for an appropriate education, only that it was likely to affect the opportunity of the student for an appropriate education.”

Those of us representing school districts have been concerned since the issuance of the U.S. Department of Education’s Dear Colleague Letter on August 20, 2013 admonishing school districts to reconvene IEP team’s to review a disabled student’s IEP if the student is determined to have been affected by bullying, that this would impose new requirements on IEP teams that they may not be prepared to address.  This opinion seems to be the culmination of those concerns.

The allegations in the T.K. case were that the student, L.K., was placed in a New York City Collaborative Team Teaching (CTT) classroom at P.S. 6, containing both general education and special education students.  She alleged that she was intentionally “pinched, bruised and injured” by another child in her class during the lunch period.  The opinion faults the school’s response to the allegations, stating that the principal failed to investigate adequately and inform the parents about actions taken to resolve the problem.  The following year, it was alleged that this same student “stomped” on L.K.’s toes.  There was no way to separate the two students because they were both special needs students requiring the same classroom, and there was only one such classroom available in the school.  That year, L.K. complained daily to her parents about being bullied and resisted attending school, resulting in multiple tardies and absences. According to the opinion, the teachers in the classroom confirmed that L.K. was bullied by the other students and that the classroom was a “hostile environment” for her.

It does not appear that any specific IEP team meetings were convened to address this situation for L.K., and when the annual review meeting was held that spring and the parents attempted to raise the issue of bullying and how it was going to be addressed, the opinion states that the parents were told that was not an appropriate subject for the IEP team to address and that it would not be discussed.  This, the court found, denied the parents a meaningful opportunity to participate in the educational process.

The court further found fault with the fact that the present levels of academic and functional performance on the child’s IEP failed to reflect that she had been a victim of bullying, and instead focused on the child’s “sensitivity” and need to improve her communication skills.  Although the student had goals and a behavior intervention plan (BIP) that addressed her interfering behaviors, which would in turn, the staff contended, reduce her vulnerability to bullying by peers, the court deemed these measures insufficient. “Where there is a substantial probability that bullying will severely restrict a disabled student’s educational opportunities, as a matter of law an anti-bullying program is required to be included in the IEP.” (Emphasis added.)

There is just one problem: IDEA does not say that, and neither do its implementing regulations.  There is nothing in IDEA that tells schools what an “anti-bullying program” is for purposes of a child’s IEP.  While certainly no one would advocate that leaving a child who is being bullied in an untenable situation is an acceptable educational outcome, the IEP is designed to focus on the measurable outcomes that will be achieved in that child’s skills and abilities over the course of the next school year, not to regulate the conduct of other children around them.  As most states do, Connecticut has a robust anti-bullying statute which gets further refined seemingly each year by the legislature, and school districts are required to take steps to improve school climate for all students, investigate and address bullying and other mean-spirited behavior when it does occu, and make sure that every child has the opportunity to attend school in a safe and healthy learning environment.  A safety plan is required for any child who is the victim of a verified incident of bullying.  That’s not the problem.  The problem is, how do we go about including this in a child’s IEP and is it appropriate to do so?

The opinion does not answer this question.  It criticizes the department of education for “blaming the victim” by focusing on goals and objectives to improve the child’s measurable outcomes.  It seems to imply that the IEP perhaps should have focused more on changing the setting in which the child was being educated to remove her from being the target of the other students, which perhaps would have resolved the situation.  But, IDEA makes a distinction between a “placement” and a “location” for a child’s educational program.  The “placement” needed by L.K. was the CTT classroom.  The district was not required to specify that the location of the CTT classroom would have been changed to remove L.K. from the bullies, even if that was the intent of the school officials. But in the absence of an “anti-bullying program” in L.K.’s IEP, this court decided that the parents were entitled to reimbursement for their unilateral private school placement.

It’s hard to imagine that the New York City Department of Education isn’t preparing their papers for the appeal as we speak.  Leaving that aside, however, forewarned is forearmed.  It is clear that we need to pay attention to our obligations under both the anti-bullying statutes and the Dear Colleague Letter and ensure that IEP teams are addressing the unique needs of children with disabilities who are being bullied by their classmates. And, when it comes down to it, we just need to make schools a safe place to learn.

The U.S. Department of Education’s Office of Special Education and Rehabilitative Services (“OSERS”) published a new “Dear Colleague” letter in August which discusses best practices for handling of bullying cases involving a student with a disability.  The letter describes that the bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of FAPE.  The letter stresses that students with disabilities are disproportionately affected by bullying.  Due to the characteristics of a student’s disability, he or she may also not understand the extent to which the bullying is harmful and may not be able to communicate the problem to an adult.  The letter states that even if the bullying is not related to the student’s disability, if the result of the bullying is the student not receiving meaningful educational benefit, then there is a denial of FAPE.  

Continue Reading New Guidance Released on Bullying as Related to Students with Disabilities

In a decision issued March 31, 2012, a United States District Court judge has rejected the appeal of the Plainville, Connecticut board of education from a hearing officer’s ruling mandating reimbursement for residential placement at the F.L. Chamberlain School in Massachusetts.  In Plainville Board of Education v. R.N. by Mrs. H., 112 LRP 16721 (D. Conn. 2012), Judge Chatigny deferred to the rulings of the hearing officer on issues of educational policy and her findings of fact in ruling in favor of the parent.  As described in the decision, the case presents a remarkable picture of a student who, as a result of severe emotional disturbance, was unable to benefit from a therapeutic day program and required a residential placement in order to make educational progress, and it also addresses some common legal disputes between parents and school districts on the subject of obtaining evaluations and exploring appropriate placement options.  See if you recognize any of this pattern in your current cases:

Continue Reading IEE’s, Residential Placement, Failure to Provide FAPE Addressed in Plainville Court Decision

If you are responsible for the implementation of either IEP’s or Section 504 plans in your school district, at some point, you have probably encountered a situation where a parent refuses to provide consent (or revokes consent) for an IEP, and insists that the district instead implement a Section 504 Accommodation Plan.  If so, you have probably wondered whether the district was obligated to do this, and you may have read the 1996 letter of guidance issued by OCR called Letter to McKethan, 25 IDELR 295 (OCR 1996).  Well, it looks like McKethan just got another "shot in the arm" from a U.S. District Court judge in the Western District of Missouri.

Continue Reading Parents Refuse Consent for IEP? Still No Obligation to Write 504 Plan

In a move that seemed to defy logic, the Connecticut Education Association (CEA) on behalf of its local affiliate the Milford Education Association, filed a complaint claiming that a popular software program, specifically designed to make easier the process of completing paperwork following a Planning and Placement Team meeting (PPT) for a special education student, in fact increased teachers’ workloads.  In the case filed with the State Labor Board, the CEA alleged that the software program took teachers nearly twice as long (one to two hours more per student) to compete an Individualized Education Plan (IEP) than it previously took to do it in long hand.  The workload of the teachers complaining involved in some cases as few as 6 students. 

 

Continue Reading LABOR BOARD REBUKES TEACHER UNION CLAIM THAT NEW SOFTWARE CAUSED INCREASED WORK LOAD