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
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…
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…
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.
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:
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.
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.
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.
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?
In a decision released by the Connecticut Supreme Court on November 16, 2010, Board of Education of Region 16 v. State Board of Labor Relations et al., Region 16 appealed to the Superior Court challenging a decision by the state board of labor relations (“SBLR”) which concluded that the school district had unilaterally changed a condition of employment in violation of Conn. Gen. Stat. § 10-153e (b) when it increased the workload of four special education teachers during the course of a school year. The SBLR also held that the school district had engaged in unlawful direct dealing with the employees. The Superior Court dismissed the appeal. The school district appealed to the Appellate Court, which, in turn, transferred the appeal to the Supreme Court.