IDEA Archives - Education Lawyers

April 13, 2020 By LeasorCrass

COVID-19 UPDATE

Below are today’s updates regarding COVID-19 and its impact on Texas public schools. For additional resources, please visit our COVID-19 page.

Documenting Temporary SPED Services
Dean Micknal, Partner; Victoria Elliott, Associate

During the current pandemic, public school districts have an ongoing obligation to provide FAPE to students with disabilities. Therefore, district personnel need to attempt to continue to follow IEPs and 504 plans to the best of their ability, while giving primary consideration to health and safety.

Due to the constraints imposed by these health and safety considerations, it is essential that districts continue taking data and documenting the accommodations and services that are being provided to students with disabilities. This documentation will be crucial once school resumes, as districts will need to hold 504 meetings and ARDs to determine whether and to what extent compensatory services are needed to address any skills that may have been lost because of the closure.

TEA has released and continues to update guidance specifically related to COVID-19 and Special Education on their website.

Additionally, TEA has recently developed and released draft forms and guidance for documenting the provision of temporary services that may be helpful in tracking this crucial component of responding in these unprecedented times.

Delegation of Authority to Superintendent
Rhonda Crass, Shareholder

Were you given authority as a Superintendent via a resolution to perform certain functions that were typically designated to the Board of Trustees? If so, how are you keeping track of the actions that were delegated to you? Leasor Crass has developed a unique system that matches the resolutions passed by your Board to ensure that there is documentation of your actions during this time of crisis. For more information, please reach out to our staff at Leasor Crass.

NSBA Legislative Call to Action Regarding Special Education Services During COVID-19: Send this letter to Congress!
Dean Micknal, Partner; Victoria Elliott, Associate

The National School Board Association (“NSBA”) has issued a “Legislative Call-To-Action” encouraging members to contact congressional representatives to consider measures that will provide flexibility and funding related to providing services to students with disabilities during the current pandemic. As mentioned in the Call to Action, a key concern that many of our colleagues have identified is the challenge of attempting to implement IEP and/or Section 504 mandated services during the extended shutdown. While districts are working to approximate these services to the greatest extent allowable, the inflexibility of the existing federal legal framework has and will continue to result in an ongoing crisis of noncompliance which will need to be addressed once normal school functions resume. Districts may find the scope of dealing with this eventuality positively crippling unless legislative action is taken to provide flexibility and funds.

A copy of the NSBA’s Legislative Call to Action is available here. More information about NSBA’s legislative efforts and resources related to their COVID-19 response is available online via the NSBA’s website.

Board Policy Suspension Regarding Grading, Class Rank & Related Matters
Rhonda Crass, Shareholder

If you have not already done so, we recommend that clients, at the next board meeting, adopt a resolution to temporarily suspend local board policies related to student grading, class rank, and related matters. The Commissioner has given broad discretion to districts regarding these issues. After this resolution is adopted, please do not forget to provide notice to parents regarding any changes.

Identifying Essential School-District Services Under Latest Texas Executive Order
Holly James, Senior Associate

State and local governments across the nation have applied varying approaches to address the question of what constitutes an essential business during the COVID-19 pandemic.

On March 19, 2020, Governor Abbott issued Executive Order GA-08, banning social gatherings in groups of more than ten people. The March 19th Order stated that government entities and businesses would continue providing “essential services” but did not define what services were deemed to be essential.

On March 28, 2020, in an effort to assist state and local governments, the U.S. Department of Homeland Security’s Critical Infrastructure Security Agency issued its Guidance on the Essential Critical Infrastructure Workforce, Version 2.0 (“CISA Guidance”), which provides an advisory list of critical-infrastructure sectors, workers, and functions that should continue during the COVID-19 response. The next day, based on the advice of medical experts, President Trump announced that restrictive social distancing guidelines should extend through April 30, 2020.

Please click here to continue reading.

November 20, 2019 By LeasorCrass

Just When a District Thinks it is Done with a Student, FAPE Still Applies

A school district was found to have denied FAPE to a student when it failed to provide any IDEA services after the student was expelled from school for attacking another student.

What is FAPE, under IDEA?

Under IDEA, a free appropriate public education (FAPE) is special education and related services that:

Are provided at public expense without charge;
Are under public supervision and direction;
Meet the standards of the TEA;
Include an appropriate preschool, elementary, or secondary education in Texas; and
Are provided in conformity with the legal requirements of an IEP.

When does FAPE apply, under IDEA?

Under IDEA, FAPE applies to all children residing in the state aged 3-21, who are eligible for special education and related services.

Does FAPE still apply after a student is expelled or suspended, under IDEA?

Under the IDEA, the state must ensure that FAPE is made available to all children residing in the state between the ages of 3-21, including children with disabilities who have been suspended or expelled from school. Further, a school district is not relieved of the obligation to provide FAPE to a student who is expelled or suspended based on a district’s claim of difficult or near impossible means of finding a placement for the student.

In Schiff v. District of Columbia, a student was expelled from his nonpublic school after attacking a medically fragile student. After the student was expelled, the District contacted ten different nonpublic schools in an effort to find a placement for the student. However, every school contacted refused to take the student. Based on this perceived impossibility of finding a new placement, the District believed that it was relieved of its duty to provide FAPE and threw in the towel.

The District of Columbia’s State Education Agency initially agreed with the District. However, that administrative decision was appealed and ultimately reversed by the U.S. District Court. In adopting a federal magistrate judge’s report and recommendation, the Court explained that the “defense of impossibility” does not apply to IDEA’s express requirement that districts provide FAPE to students with disabilities who have been suspended or expelled from school. Further, the Court rejected a novel argument for adopting the doctrine of “unclean hands” (i.e., the student’s behavior created the difficulty in finding a placement option and therefore let the District off the hook), explaining that accepting this argument would undermine the very purpose of IDEA because the manifestation of a disability cannot be the basis for the deprivation of a FAPE.

Therefore, districts need to ensure that they are providing FAPE to students, even when the student is expelled or suspended because of their own behavior. If your district finds itself confronted with a situation like this or other special education matters, the attorneys at Leasor Crass are ready to help.

April 26, 2019 By LeasorCrass

Who Doesn’t Get an MDR? OSEP Clarifies Obligations for Children Not Yet Eligible for Special Education

In addition to being ineffective, disciplining a student for conduct that is caused by, or has a direct and substantial relation to a student’s disability, constitutes disability-based discrimination. Further, subjecting a student to a disciplinary removal that is based on the student’s disability can deprive a student of a free, appropriate public education when it constitutes a change in placement based on something other than the student’s educational needs. A manifestation determination review (MDR) is a procedural safeguard that is hard wired into IDEA to prevent this from occurring by requiring districts to review the behavior of students who have been identified as disabled before imposing a potentially discriminatory discipline consequence.

But what about students who might be disabled, but have not yet been evaluated and determined eligible for services under IDEA? As explained in the Office of Special Education Programs (OSEP) recently issued Letter to Nathan, the obligation to conduct an MDR isn’t dependent on eligibility, but arises as soon as a district is “deemed to have knowledge that a student has a disability.”

Given the emphasis that has recently been placed on referring and evaluating students with suspected disabilities here in the Lone Star State, administrators may be understandably concerned about the number of children who might be entitled to an MDR. Thankfully, “deemed to have knowledge” is statutorily defined and does not necessarily apply to every student who has exhibited a child find trigger. Pursuant to 34 CFR § 300.534(b), a school is deemed to have a basis of knowledge that a student has a disability so as to require an MDR, if before the behavior that precipitated the disciplinary action occurred:

the parent of the child has expressed concern in writing to supervisory or administrative personnel of the district, or a teacher of the child, that the child is in need of special education and related services;
the parent of the child actually requested an evaluation of the child for purposes of determining eligibility; or
the teacher of the child, or other district personnel, has expressed specific concerns about a pattern of behavior demonstrated by the child directly to the district’s director of special education or to other supervisory personnel.

Additionally, 34 CFR § 300.534(c) specifies three instances in which a district is considered to not have knowledge that a student has a disability:

the parent has been offered, but not allowed an evaluation under IDEA;
the parent has refused services under IDEA; or
the child has been evaluated under IDEA and determined to not qualify.

In addition to clarifying when an MDR must be conducted, Letter to Nathan also addresses the more confusing question of how a district should go about determining whether behavior is a manifestation of a suspected disability. Noting that IDEA does not allow a district to postpone an MDR pending completion of an initial evaluation and/or development of an IEP, OSEP explains that an MDR is not contingent on reviewing an IEP, but rather requires a district to “review all relevant information in the child’s file, including any teacher observations and any relevant information provided by the parents, to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability.”

In the case of a child who has not yet been evaluated, this relevant information would include “the information that served as the [district’s] basis of knowledge that the child may be a child with a disability under IDEA, such as concerns expressed by a parent, a teacher or other [district] personnel about a pattern of behavior demonstrated by the child.” Based on this information, the district would be charged with determining whether the conduct in question was caused by, or had a direct and substantial relationship to the child’s suspected disability.

The manifestation determination review is a vital procedural safeguard that protects students from disability-based discrimination that could deprive them of a free, appropriate public education. That said, we certainly recognize that MDRs are (understandably) frustrating to administrators who already feel spread too thin and difficult to explain to members of the school community concerned with a perceived undermining of accountability. If you have questions or concerns about OSEP’s latest guidance or complying with the MDR mandate in general, the attorneys at Leasor Crass, P.C. are ready, willing, and able to help.

October 26, 2018 By LeasorCrass

The Parent’s Always Right…Not

Did you know parents do not have a right to compel a school district to provide specific programming or employ specific methodology when teaching students with disabilities? According to a Special Education Hearing Officer’s interpretation of the IDEA, parents may provide meaningful input into the development of their child’s IEP, but are not entitled to dictate the outcome. When it comes down to a choice in methodology, deference is given to professional educators.

A due process hearing in June 2018 ruled on a dispute between a well-intentioned parent and a Texas school district. The central issue turned on whether the District’s proposal to implement a more holistic reading program and placement in a special education classroom for reading and math instruction was reasonably calculated to provide FAPE in the Least Restrictive Environment, or LRE. The “methodological dispute” arose following a February 2018 ARD meeting that ended in non-consensus on the District’s proposals.

The parent stated the student was making progress in the student’s private reading program, funded by the parent, and argued the District should incorporate lessons from the private reading program into the student’s school day. In contrast, the District wanted to increase the student’s instructional time in a special education classroom for Reading and Math and provide the student with a more holistic approach to reading. The District argued the special education classroom provided the student with more one-on-one assistance due to the lower student/teacher ratio and the proposed reading program catered to the student’s visual learning skills, a strength discovered in prior evaluations.

The Hearing Officer noted a parent is entitled to provide their child with whatever assistance they deem appropriate, but the law does not compel a district to employ the same assistance merely because it is the parent’s preference. While a parent may be committed to their child’s best interest, the best interest of the student is not the applicable legal standard under the IDEA. Rather, the IDEA requires the District to provide a program “reasonably calculated to provide [the] student with a meaningful educational benefit given [the] student’s unique circumstances.”

The District’s proposed program, in this case, utilized the student’s individual strengths as a visual learner and would instruct at an appropriate pace while taking into account the student’s processing deficits. The program was based on 1) research, 2) the student’s educational history, and 3) the student’s assessed strengths and weaknesses. Therefore, this program satisfied the requisite IDEA standard and was reasonably calculated to provide the student with a meaningful educational benefit in light of the student’s individual circumstances.

On a related note, the Hearing Officer also conducted an analysis of the least restrictive environment and named several factors to be considered in making an LRE determination. The noted factors include the nature and severity of the student’s disabilities, academic achievement, non-academic benefits of placement in a regular classroom, overall experience in the mainstreamed environment, and the effect of the student’s presence in the regular classroom. With respect to the last factor, the Hearing Officer explained that two questions should be asked when evaluating the effect of the student’s presence in the regular classroom. The first is whether the student’s behavior is so disruptive the education of the other students is significantly impaired. The second question is whether the student requires so much of the teacher’s attention the rest of the class suffers. If the answer to these questions is yes, the balance leans in favor of placement in a special education classroom.

In this case, the evidence showed the student became consistently frustrated attempting to keep up with the student’s non-disabled peers and that frustration disrupted the student’s own learning and the learning of other students. The student needed a high-level of teacher assistance and became disruptive when they did not receive it. Additionally, the student became increasingly frustrated and disruptive when the teacher was helping other students. These factors along with others led to the conclusion that the student’s LRE was placement in a mix of general and special education classrooms as proposed by the District.

This decision is a good illustration of the law surrounding parental rights to provide meaningful input, but not to compel or dictate the actions districts take. Districts should listen to and understand what the parent desires, but ultimately the District has both the right and obligation to make an individual determination based on the student’s unique circumstances. Additionally, when making a determination as to a student’s LRE the Fifth Circuit’s two part test, as set forth in Daniel R.R. v. State Board of Educ., should be followed. First, the analysis must be individualized and fact-specific. Second, careful consideration should be given to the nature and severity of the student’s abilities, disabilities, needs, and the district’s response to the student’s needs.

If you would like to read the full decision, click here and scroll down to Docket No. 146-SE-0218.

If you have any additional questions about this ruling or any other issue, please do not hesitate to contact the attorneys at Leasor Crass.

February 9, 2018 By LeasorCrass

TEA SEEKING INPUT REGARDING DRAFT CORRECTIVE ACTION PLAN

Dean Micknal As detailed in a monitoring report released by the U.S. Department of Education’s Office of Special Education Programs (“OSEP”) last month, TEA’s use of the 8.5 percent special education representation indicator was determined to have contributed to a statewide pattern of practices that violated the Individuals with Disabilities Education Act (IDEA) child find requirements, resulted in a failure to make FAPE available to all eligible children with disabilities residing in the State, and demonstrated a failure on the part of TEA to fulfill its general supervisory and monitoring responsibilities under IDEA. TEA is now seeking “significant stakeholder engagement” regarding an initial draft of its plan to bring it back into compliance with IDEA. Detailed information about opportunities available for providing feedback (including a link to an online survey and calendar of upcoming stakeholder meetings) is available online here. This opportunity to provide input should not be ignored, as the plan has serious repercussions for public school districts.

Those wishing to review a full copy of OSEP’s 14 page monitoring report can access it here. However, the critical issue identified by OSEP can be summarized as a perceived widespread confusion on the part of local school districts with respect to the obligation to refer students for evaluation under IDEA as required by 34 CFR §300.111. Specifically, OSEP identified serious and systemic problems with how this “child find” mandate relates to Response to Intervention (“RtI”), Section 504, and the state’s dyslexia laws. The report emphasizes OSEP’s position that supports being provided in the general education environment through these and other programs cannot serve as a basis to delay or deny the referral of a struggling learner who is suspected of having a disability and needing special education and related services.

School districts should be aware that TEA’s initial proposal for remedying this issue includes the following provision:

TEA will require every district and charter school to identify all students who were in RtI for 6+ months, only had a Section 504 plan, or were exclusively in a dyslexia or dyslexia-related program. Schools must connect with the parents of these identified students not yet in special education and notify them of the corrective action plan and opportunity for a special education evaluation. The cost of identifying and conducting assessments for students suspect of having a disability has always been the responsibility of the district, which will continue.

While well intentioned, implementing this proposal could prove problematic for local school districts. First, the plan doesn’t address incidents in which a district might have legitimate reasons for refusing to conduct an evaluation. Second, it doesn’t consider the logistical issues that might arise from attempting to complete a potentially massive number of evaluations within the statutorily imposed timeframe. Finally, districts should recognize that the “costs of identifying and conducting assessments for students suspected of having a disability” includes costs associated with the procedural safeguards provided to the parents seeking those evaluations. These costs include the obligation to provide an Independent Educational Evaluation (IEE) at public cost and/or the right to request a due process hearing in response to disagreements regarding the evaluation.

Despite its fundamental importance, Child Find has proved to be a deceptively complicated concept. While undeniably challenging, the potential benefit of developing clear, concise, and unambiguous guidance in response to OSEP’s findings should not be overlooked. In the meantime, if you have questions about your district’s responsibilities under IDEA and/or participating in TEA’s efforts to address OSEP’s concerns, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.

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