students with disabilities

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

In late December of 2016, the Department of Education’s Office for Civil Rights (OCR) issued information to school districts regarding how the use of restraint and seclusion may result in discrimination against qualified students with disabilities in violation of Federal laws that prohibit disability discrimination, including Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II).  The guidance sets forth OCR’s interpretation of these laws and regulations.  For more information about the Department’s best practices, please see the Department’s Restraint and Seclusion: Resource Document (May 15, 2012).  The Resource Document recommended that school districts never use physical restraint or seclusion for disciplinary purposes; never use mechanical restraint; and that trained school officials use physical restraint or seclusion only if a child’s behavior poses imminent danger of serious physical harm to self or others.

What is the concern?

According to the Department’s Civil Rights Data Collection (CRDC), during the 2013-14 school year students with disabilities were subjected to mechanical and physical restraint and seclusion at rates that far exceeded their non-disabled peers.  The existence of this disparity raises a question as to whether school districts are imposing restraint or seclusion in discriminatory ways. In addition, OCR continues to observe legal violations in investigations of schools’ use of restraint and/or seclusion for students with disabilities.

What is restraint? 

In general, OCR uses the following definitions for mechanical restraint and physical restraint. Mechanical restraint refers to the use of any device or equipment to restrict a student’s freedom of movement. The term does not include devices implemented by trained school personnel, or utilized by a student that has been prescribed by an appropriate medical or related services professional and are used for the specific and approved purposes for which such devices were designed, such as:

  • Adaptive devices or mechanical supports used to achieve proper body position, balance, or alignment to allow greater freedom of mobility than would be possible without the use of such devices or mechanical supports;
  • Vehicle safety restraints when used as intended during the transport of a student in a moving vehicle;
  • Restraints for medical immobilization; or
  • Orthopedically prescribed devices that permit a student to participate in activities without risk of harm.

Physical restraint refers to a personal restriction that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head freely. The term physical restraint does not include a physical escort. Physical escort means a temporary touching or holding of the hand, wrist, arm, shoulder or back for the purpose of inducing a student who is acting out to walk to a safe location.

What is seclusion? 

In general, OCR defines seclusion as the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving.  It involves the monitored separation of the student in a non-locked setting and is implemented for the purpose of calming; it does not include a timeout, which is a behavior management technique that is part of an approved program.

What does Federal law require school districts to do for students with disabilities? 

Section 504 requires that students with disabilities receive a free appropriate public education (FAPE).  The Section 504 regulation defines FAPE as the provision of regular or special education and related aids and services that are designed to meet the individual needs of students with disabilities as adequately as the needs of students without disabilities are met.  A student’s behavioral challenges, such as those that lead to an emergency situation in which a school believes restraint or seclusion is a justified response, could be a sign that the student actually has a disability and needs special education or related aids and services in order to receive FAPE.

Can the use of restraint or seclusion deny a student’s receipt of Section 504 FAPE Services? 

Yes. There are multiple ways in which the use of restraint or seclusion might deny FAPE which are outlined in The Business Case for Preventing and Reducing Restraint and Seclusion Use which was prepared for the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration.  For example, the use of restraint or seclusion may have a traumatic impact on that student such that even if she were never again restrained or secluded, she might nevertheless have new academic or behavioral difficulties that, if not addressed promptly, could constitute a denial of FAPE.   See National Center for Trauma-Informed Care and Alternatives to Seclusion and Restraint last updated October 26, 2015.  Furthermore, the repeated use of restraint or seclusion in school could deny a student’s receipt of FAPE in another way.  Consider a student with a disability who engages in behavior in response to which the school secludes him for extended periods and on multiple occasions. While secluded, the student does not receive educational instruction or services. Cumulatively, the school’s repeated use of seclusion with that student could result in the school’s failure to comply with the Section 504 team’s decision about the regular or special education, related aids and services, or supplemental services and modifications that the student needs, or the appropriate setting in which to receive those services and therefore may constitute a denial of FAPE as outlined in the 2016 Dear Colleague Letter: Restraint and Seclusion of Students with Disabilities.

Does the parent or guardian of a student with a disability have a right to discuss the impact of restraint or seclusion on their child’s access to FAPE? 

Yes. Section 504 requires that school districts establish and implement a system of procedural safeguards for parents or guardians to appeal district actions regarding the identification, evaluation, or educational placement of students with disabilities who need or are believed to need special education or related services. The school district must tell parents and guardians about this system, notify them of any evaluation or placement actions, allow them to examine their child’s records, afford them an impartial hearing with opportunity for parent or guardian participation and representation by counsel, and provide them a review procedure according to the 2016 U.S. Department of Education Office for Civil Rights Fact Sheet: Restraint and Seclusion of Students with Disabilities.

The education team at Berchem, Moses & Devlin, P.C. offers representation to school district clients across the State of Connecticut.  Visit http://www.bmdlaw.com, or email us at mlaubin@bmdlaw.com.

The United States Department of Education announced a new final regulation under Part B of the Individuals with Disabilities Education Act (“IDEA”).   The final regulations establish one standard States must use in determining (and seeking to eradicate) significant disproportionality based on race or ethnicity within its districts. The goal of the Department of Education in creating these new standards is to obtain consistent and accurate data across each of the states.

One of the highlights of the new regulations the Department of Education’s focus on disparities in the discipline of students with disabilities on the basis of race or ethnicity. Specifically, the regulations clarify that States must address significant disproportionality in three areas:

  • Incidence of discipline;
  • Duration;
  • and type of disciplinary actions, including suspensions and expulsions.

Accordingly, the final regulations clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found.

As part of requiring uniform reporting requirements, districts will be required to identify and address the factors contributing to significant disproportionality as part of comprehensive, coordinated early intervening services. In addition, new flexibilities will further help districts identified with large disparities in addressing the underlying causes of the disparity in order to root out the causes of disproportionality.

Districts should begin to prepare for these changes in practice by examining their own policies as well as speaking with an attorney about modifying existing policies as well as training staff in the reporting requirements.

Starting on January 11, the Supreme Court will hear oral arguments for Endrew F. v. Douglas County School District, an appeal from the Tenth Circuit in which the Court is tasked with determining whether school districts must provide students with disabilities an “educational benefit” that is “more than de minimis” in order to satisfy the requirement of a free appropriate public education (FAPE) pursuant to the Individuals with Disabilities Education Act (IDEA).  In doing so, the Supreme Court may resolve an ongoing split among the United States Courts of Appeals, which vary significantly with respect to the standard applied when assessing whether FAPE has been provided to a student with special education needs.

Endrew F. involves a fifth-grade student with Autism, Attention Deficit Hyperactive Disorder (ADHD), and significant behavioral issues.  The student attended public elementary school with an Individualized Educational Program (IEP) in place through the fourth grade.  The parents rejected the school district’s proposed IEP for the fifth grade, opting instead for unilateral placement at a private school for children with Autism.  The parents alleged that the district failed to provide adequate progress reports and failed to develop and implement an appropriate plan to address the student’s behavioral needs.  The administrative law judge (ALJ) ruled in favor of the school district, and both appeals courts affirmed.

In affirming the lower court decision, the Tenth Circuit examined whether the student was offered FAPE by applying the “some educational benefit” standard previously adopted in that Circuit, defined there as something more than a “de minimis” educational benefit.  While the student’s proposed fifth grade IEP had not yet been implemented, the Tenth Circuit cited the student’s educational progress based on his prior IEPs as evidence that the fifth grade IEP was reasonably designed to afford “some” educational benefit.  The proposed IEP addressed all of the student’s disabilities and behavioral concerns, and was thus sufficient to provide a FAPE.

The “some educational benefit” standard adopted by the Tenth Circuit is also used, in some form, by a majority of the other circuit courts of appeals.  The Second, Third and Sixth Courts of Appeals, however, have adopted the more stringent “meaningful educational benefit” standard.  This standard, based on other language in Rowley, requires school districts to develop IEPs designed to afford an educational benefit which is measured for appropriateness in relation to the child’s potential.  While there is considerable dispute regarding the true difference between the competing standards, it is generally accepted that the higher “meaningful” benefit standard requires something beyond a “more than de minimis” educational benefit.

The Second Circuit has maintained the “meaningful educational benefit” standard since its 1998 ruling in Walczak v. Florida Union Free Sch. Dist.  In that case, the parents of a special education student with significant academic, behavioral, and social limitations sought reimbursement by the school district for unilateral placement at a private residential program, which they alleged was necessary for the student to make appropriate progress in the aforementioned areas.  While the Second Circuit acknowledged that an appropriate education is one that is “likely to produce progress,” as opposed to only “trivial advancement,” it ultimately denied the parents’ request for reimbursement.  The student had made consistent, albeit slow, academic, behavioral and social progress at her prior day placement within the district.  The mere fact that residential placement offered more opportunities for social interactions was not enough to render continued day placement inadequate for a FAPE.  Indeed, while the Second Circuit adopted the higher FAPE standard, it echoed the Supreme Court’s sentiment in Rowley that the IDEA does not require states to develop IEPs that “maximize the potential of handicapped children.”

Shortly after the appeal of Endrew F. to the Supreme Court, the Solicitor General, on behalf of the Obama administration, submitted an amicus curiae brief advocating for the higher “meaningful educational benefit” standard.  The Solicitor General submitted that Congress would not have instructed states to develop IEPs requiring measurable annual progress if all that was truly required was a “non-trivial” benefit.  Finally, the Solicitor General highlighted the Rowley court’s emphasis on “meaningful” (versus non-trivial) access to education, and the overall remedial purpose of the IDEA in advocating for the higher FAPE standard.  While we in the Second Circuit have been accustomed to the “meaningful educational benefit” standard, it remains to be seen how the Supreme Court will interpret its prior decision in the Rowley case, and whether the uniform standard for FAPE under IDEA will be “some” educational benefit, “meaningful” educational benefit, or a third possibility not yet articulated.  For practitioners in this field, further articulation of the Rowley standard can only be helpful and provide clarity to complex decision-making.

Attorneys at Berchem, Moses & Devlin, P.C. are available to consult to school districts regarding special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@bmdlaw.com.