Special Education Law Blog

Lack of Plan to Move Student to LRE Denied FAPE

A very intersting case that I became aware of from the blog of Jeff Marcus, a parents' attorney in New York State is A.Y. and B.Y. v. Cumberland School District case which was decided on July 7, 2008 by District Court Judge Smyser of Pennsylvania. This case involved a young child with autism who had been in private placement. The school district wrote an IEP attempting to move the student back to the district's autism program. The parents challenged this change in placement on a variety of grounds. The court on review ruled that the IEP denied a FAPE. One of the court's reasons for its ruling in favor of the parents was:

" Lastly, the district knew that B.Y. had extensive behavioral, emotional, and academic difficulties in prior placements in both the District and at Janus. The District also knew that B.Y. required help with transitions. In fact, the District included the recommendations of advanced preparation for transitions and comprehensive planning for major transitions, including transitions from school to school in both the ER and IEP. Knowing that transitions were difficult for B.Y. and that transition planning was necessary for him to successfully return to the District from Janus, the only mention of transition planning that the District included in the IEP was a transition note that stated the once B.Y.'s parents had visited the autistic support classroom in the District and "If [B.Y.'s parents] approve his placement a transition plan will be developed ..." As B.Y.'s parents' attorney noted, this is merely a promise of a transition plan, not an actual transition plan. I must agree. When a school district knows that a child requires a transition plan to return to that district from a private school placement and that school district does not include a transition plan in the IEP, the IEP is not appropriate. In Re the Educational Assignment of S.K., Spec. Educ. Op. 1769 (2006).

This case is interesting since this fact pattern arises for a lot students both within a placement and between placements, as in this case.  Difficulty with transitions is a common issue but it is rare that schools make the effort to actively plan for this need and certainly not as part of the IEP. I have many students who have had significant behaviors when transitioning between activities. Failing to actively plan for known difficulties in transition can be a denial of FAPE can be most useful argument to parents and attorneys as they are defending their child's difficulties related to transition.  It may also prompt schools to be more proactive in how they address difficulties with transitional issues. I have not seen another case like this one with such a ruling. There may another case like it but it has not come across my desk.

It should be noted that the use of the word "transition" in this case is different than the "Transition Plan" dealing with moving students to productive post-IEP lives.

 

New Jersey Plaintiffs Win Major LRE Court Battle

The Federal District Court in New Jersey this week ruled that a major suit can go forward against the New Jersey Department of Education. The suit is premised on allegations that New Jersey has systemically excluded special needs students from being educated in inclusive settings. As reported:

"The complaint charges that the defendants violated both the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act by systemically placing students with disabilities in segregated, disabled-only classrooms. For years, New Jersey has had the worst record in the nation in complying with the IDEA and Section 504 mandates to educate students with disabilities in the "least restrictive environment," alongside their non-disabled peers."

Score one for the good guys! We need a whole lot more like this case to make a real dent but it is a nice start in big state.

FBA Requires Parent Consent and Are Subject to IEE Request

A question that has come up with some frequency has been whether schools need to get parental consent before doing a Functional Behavioral Assessment ("FBA"). Many school districts have taken the position that an FBA is more an informal assessment, and therefore no consent is required. Schools have even more emphatically  taken the position that parents can not request a free independent educational evaluation ("IEE") if the school's FBA was deficient.

Many thanks goes out to fellow blogger Randy Chapman who has brought out a fairly recent U.S. Department of Education OSEP opinion letter that answers yes to both questions. That is, for a school to conduct an FBA the parent must consent and the parent has the right to seek an IEE to get another FBA accomplished.

It may seem like a small point but it is not.  FBAs too often arise in the heat of the moment when the school is building momentum to move a child to a more restrictive placement. The parent comes to a meeting and gets clobbered with an FBA data that shows what a horrible behavioral problem his or her child has been for some time, of course often unbeknownst to the parent. Armed with this OSEP memorandum, the FBA would be in violation of this OSEP guidance without parents' knowledge and written consent; certainly enough to take the wind out of the district's sails sufficient for the parent to regain at least equal footing with the school. The next step would be to then ask for an IEE for a new FBA, so the student gets a fair and impartial assessment of the behaviors which are interfering with their education.

Stinging Back Over Tom F.

I am glad the folks over at NSBA's BoardBuzz have a good sense of humor over my criticisms of their commentary of the Tom F. case. They 'stung' back today with a response to yesterday's blog. My only responses to their comment is that district's do not have to pay for an out of district placement if they meet the relatively low standard of Rowley, and unilateralism on the part of schools, more often than not, leads to conflict (and yes, some parents are at fault in this regard). Most parents undeniably chose this risky and tough road only as a last not a first resort.

In the Tom F. Case The Tie Goes for the Parents

In the Tom F. case the U.S. Supreme Court issued a decision (see pdf below)   which effectively ruled in favor of a parents right to place their child in an out of district placement, sue for reimbursement, even if that child had never been enrolled in the school district.  The decision was 4 to 4 with Justice Kennedy not participating.

The Federal Appeals Court in New York State (2d Circuit Court of Appeals) ruled in favor of  parents' right to seek reimbursement, even if they had not enrolled their child in public school. With a tie vote the lower court's ruling is affirmed or upheld. (see Pete Wright's commentary on the case.)

Download tom_f.pdf

Illinois District Brought to Shame by Amanda Windom

The expression is that it takes "two to tango." In this case the two were some dedicated parents and District #203 in Naperville, Illinois over an AAC device known as the Tango.  School District #203 in an act of overt meaness recently denied a six-year-old boy with autism access to his communication device, the Tango.  The District first agreed to supply the Tango and than decided that the child could only have the device if his parents agreed to put him in a summer program that had been deemed inappropriate.  The Hynes family appeared in court pro se, and the school district, represented by its counsel, was literally brought to shame.

The Hynes, in an attempt to enforce their son's rights to access the  Tango, moved in state court for a Temporary Restraining Order.  On June 27, 2007, Mr. Hynes  appeared before Judge Milton Shadur in federal court, responding to the school's efforts to have the case moved to Federal Court.   Judge Shadur decided in favor of the family directing the famous question "Have you no shame?" from the McCarthy hearings, to the district's counsel for trying to remove the Tango from the child. Judge Shadur also stated that the school district was "blackmailing" the parents trying to get them to agree to a program that their "own professionals have not found to be in his best interest".Download JudgeShadurDecision-5.pdf

Later that day the District  sent the family a gag order stating that they would provide the device only after the family agreed to keep quiet about Judge Shadur's decision.  Instead of responding, the Hynes family re-filed the Temporary Restraining Order in State Court.

Winkelman Case Decided for Parent

The Winkelman case was decided 7-2 in favor of parents. So parents will be able to represent their children in court.  Details and analysis to follow. It is a great feeling to win and by such a wide margin !

Fighting Propaganda Over Tom F. With Facts

The U.S. Supreme Court latest case to be reviewed is a New York case referred to as Tom F. over parental rights to receive reimbursement for private school placements. As with many public discussions the media coverage in this case is one-sided, biased against parents, and based upon false perceptions rather than fact. It is up to all of us to take a public stand and to slam back whenever false impressions of students with special needs are portrayed publicly or for that matter in schools or at meetings.

The following post is from Selene Almazan who is has been on the front lines for years fighting for inclusion in Maryland as part of her job at the Maryland Coalition for Inclusive Education (MCIE) and as an officer of the Council of Parent Attorneys and Advocates (COPAA). Her post is a reprint of a letter that she sent to the New York Times rebutting incorrect and misleading statements that have been published regarding parents and the need for private placements. Unlike this typical news story, her rebuttal is based on fact and data, not perception and innuendo.

Supreme Court Roundup of Tom F. and Winkelman

The Disability Law Blog has a nice roundup of the Tom F. case and today's oral arguments in Winkelman. The report on the Winkelman case that I think is important is the forcefulness that the U.S. Solicitor General, the Supreme Court advocate for the U.S. Government, argued in favor of the parents' position. For a pdf of the oral arguments click here. [This link provided courtesy of my collegue and fellow blogger Sandy Hausler].

The report on the Tom F. case explains the issue in terms of whether parents should be burdened with the additional obligation of seeking reimbursement for private tuition or home-based ABA services only after first enrolling in the school's program. I have successfully made the argument that enrollment is not a necessary prerequisite for reimbursement but on the other hand as a matter of fact it is hard to argue against  a program that the child has never experienced. 

I will be blogging on the decision in Winkelman which it is expected this Spring before the Court recesses for the Summer and on the briefing unfolds in Tom F.

Supreme Court to Decide Tom F. Case On Reimbursement

On Monday, Feb. 26, 2007, the U.S. Supreme Court granted certiorari in Board of Education of the City School District of New York v. Tom F. ex rel. Gilbert F., No. 06-637 (U.S. 02/26/07, cert. granted). This case involves the question of whether a student who receives special education services from a private school is eligible for tuition reimbursement if he never obtained such services from a public school district.