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

This is one of those (rare) moments where, as a school lawyer, you think common sense has prevailed.  We shouldn’t need a decision from a State hearing officer to tell us that once a parent has revoked consent for special education services, then the parent cannot come back and claim that the district has denied the child a Free Appropriate Public Education (FAPE).  And yet, we had a four-day hearing in February and March concerning that very issue, resulting in Final Decision and Order 11-0256, Student v. Newtown Board of Education.  The decision will be posted on the State Department of Education website, but until then, you can read a copy of it here.

Continue Reading Parent Cannot Revoke Consent for Special Ed, Then Claim Denial of FAPE

A recent letter issued by the Office of Special Education Programs (OSEP) calls into question the practice of denying a request to evaluate a student for potential learning disabilities based upon the failure of the private school where the child attends to conduct Response to Intervention (RTI) activities (or, as we in Connecticut call it, SRBI).  In Letter to Zirkel, 111 LRP 2768 (OSEP 1/6/11), Dr. Zirkel asked OSEP to comment on the question of how a school district that has adopted an RTI approach may meet its "child find" obligations under the Individuals with Disabilities Education Act (IDEA) in a case where the student attends a private school and the private school has not adopted an RTI approach.  These cases can arise because the child’s parents have enrolled the student in a private or parochial school and either the parents or the private school may come to suspect that the child has a learning disability and make a referral to a public school district for evaluation.  If the parents withdraw the stduent from private school and enroll in public school before making the referral for evaluation, these matters may be resolved by having the student participate in the increasingly more intensive tiered levels of instruction in general education required by most RTI models.  However, if the parents want the child to remain in the private school during the evaluation process, the district is now faced with a conundrum: How do we satisfy our obligation to determine whether the child responds to appropriate instruction in general education if we are unable to provide the appropriate instruction that we would typically provide in this situation?

Continue Reading OSEP Says Don’t Insist on RTI Evidence Before Evaluating Private School Students for Learning Disabilities