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New York University Press 2013 Ruth Colker Distinguished University Professor The Ohio State University Moritz College of Law Topics for discussion Racial Statistics in Special Education Patterns in Ohio ID: 588734

child school evaluation grade school child grade evaluation district parent educational education disability mfe standard public disabilities services ohio

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Slide1

Disabled Education

New York University Press (2013)

Ruth Colker

Distinguished University Professor

The Ohio State University

Moritz College of LawSlide2

Topics for discussion

Racial Statistics in Special Education

Patterns in Ohio

Child Find

Interpreting Test ScoresIndependent Educational EvaluationsAdequacy of Individualized Educational ProgramsRelief for Procedural ViolationsThe FutureSlide3

National Disability classification data (2010)

African-American

(14 % of population)

Hispanic

(22

% of population)

White

(55 % of population)

Mental Retardation

32.5 %

12.8 %

51.4 %

Speech or

Language Impairment

16.5 %

18.1 %

61.6 %

Visual Impairment

16.3 %

26.7 %

52.3 %

Emotional Disturbance

28.5 %

11.9 %

56.7 %

Orthopedic

14.2 %

20.6 %

61.4 %

Othe

r Health Impairment

18.9 %

9.8 %

68.4

%

Specifi

c Learning Disability

21.2 %

23.8 %

52.1 %

Multiple Disabilities

18.8 %

12.6 %

64.8

%

Hearing Impairment

16.2 %

24.9 %

52.9 %

Autism

14.0 %

11.3 %

69.7 %

Developmental Delay

23.7 %

9.6

%

59.4 %Slide4

National Suspension data for students with disabilities

African-American

White

1998-99

0.36 %0.2 %

2002-03

2.38

%

0.74 %

2005-062.78 %0.67 %2007-084.11 %1.09 %Slide5

THEMES in OHIOSlide6

ohio

Large number of sufficiency determinations under 2004 Act

Many cases involved issue of whether child was even eligible for special education; not a lot of cases about adequacy of IEP

Question: Why are school districts aggressively pursuing litigation despite flagrant violations of statute? Slide7

Child find considerations

Child Find obligation is an “affirmative duty” of the State or LEA

Obligation helps

neutralize

what Schaffer Court called the school’s “natural advantage.”Child Find cases can be very important for children subject to suspension who have not yet been identified as disabled. Sixth Circuit standard: Board of Education of Fayette County

v

. L.M

., 478 F.3d 307, 313 (6

th

Cir. 2007): Claimant “must show that school officials overlooked clear signs of disability and were negligent in failing to order testing, or that there was no rational justification for not deciding to evaluate.”Slide8

Child find statutory language

All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the sate and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are receiving needed special education and related services. (20 U.S.C. § 1412(3)(A))

Ohio timeline:

Does MFE take place?

School district provides parents with Prior Written Notice within 30 days of referral, either agreeing or refusing to conduct an evaluation. Request could come from parent or the school’s screening/review team.MFE is conducted

: Once parental consent is received, the school district conducts the evaluation within 60 days. (Ohio Guidance to 3301-51-01)Slide9

Delays in initial evaluation

The 60-day timeline for conducting the evaluation does not apply to a school district if:

The parents of the child repeatedly fails or refuses to produce the child for the evaluation; or

The child enrolls in a new school district of residence after the 60-day period has begun, but prior to a determination by the child’s previous school district of residence regarding whether the child is a child with a disability. This exception applies only if the current school district of residence is making sufficient progress to ensure a prompt completion of the evaluation and the parents and the current school district agree to a specific time when the evaluation will be completed.

When determining the existence of a specific learning disability, the 60-day timeline also can be extended with mutual written agreement

between the parents and eligibility team if it is determined that additional data are needed that cannot be obtained within the 60-day timeline.

Notice: RTI is NOT a reason to unilaterally slow down the 60 day evaluation timeline!

Source: Ohio Guidance to 3301-51-05

After determination child is disabled, school district needs to develop an IEP within 30 days. See

Knable v. Bexley City School District, 238 F.3d 755 (6th Cir. 2001).Slide10

Board of Education of Fayette County

v. L.m., 478 F.3d 307 (6

th

Cir. 2007)

T.D. exhibited behavioral and academic problems beginning in kindergartenReceived some interventions and was meeting grade-level expectations by end of kindergarten (1998-1999)Also struggled in first grade and received specialized reading instruction, reading recovery program and behavior-management strategies; stayed near grade level (1999-2000)

By end of second grade, his standardized test scores showed him reading “far below grade level” but teacher did not make an IDEA referral although notified principal. (2000-2001)

Third grade teacher recommended he repeat third grade

; his guardian objected, he attended summer school and moved on to fourth grade (2001-2002)

September 2002: School notified of ADHD diagnosis (beginning of 4

th grade)November 2002: School principal referred T.D. for IDEA evaluation (fall of 4th grade)February 2003: Committee decided full evaluation appropriate (winter of 4th grade)

April 2003: Evaluation completed (spring of 4

th

grade)

May 2003: Committee met to devise a plan of action (spring of 4

th

grade)

May 2003: Guardian filed for due process to contest delay and content of plan (spring of 4

th

grade)

January 2004: IHO decision finding T.D. should have been classified by end of second grade (5th grade)

May 2004: Appeals Board upheld IHO decision except for structure of compensatory award (spring 5th grade)

July 2007: District court largely upholds IHO

IQ of 105 but still reading at fifth grade level during 7

th

grade

School not legally liable for failure to refer for evaluation before second grade because “the nature of ungraded primary school recognizes the progress of very young students is not uniform.”

But was legally liable for delay from Fall 2002 (beginning of 4

th

grade) to Spring 2003 (end of 5

th

grade).

School Districts often cite this case for first point without recognizing court did find a “child find” violation.Slide11

Relationship to manifestation review

A child who has not been determined to be eligible for special education and related services under this subchapter and who has engaged in behavior that violates a code of student conduct, may assert any of the protections provided for in this subchapter if the local educational agency had knowledge ... that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

A school is deemed to have knowledge of the child's disability and need for special education if one of three circumstances exist:

the parent of the child has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services;

the parent of the child has requested an evaluation of the child pursuant to section 1414(1)(1)(B) of this title; or

the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education or such agency or to other supervisory personnel of the agency.

20 U.S.C. § 1415(k)(5)(A) & (B)Slide12

Jackson

v. Northwest Local School District, 2010 WL 3452333 (S.D. Ohio 2010)

Mother first sought assistance for daughter at age 6 in 2006; diagnosed with ADHD and provided with interventions but no IEP for first and second grade

Behavior worsened in October of 3

rd gradeRather than recommend an MFE, team recommended that mother seek assistance for child at an outside mental health agency on October 23, 2007

Child was suspended on November 6, 2007 and told could not return to school unless she received psychological counseling and provided written confirmation that she was not a danger to herself or others; she had threatened to bring a gun to school and shoot certain students

Little home instruction until returned to school in January 2008

Later in November 2007

, upon advice of counsel, mother requested an MFE and a manifestation review

Mother given procedural safeguards handbook in January 2008School did not agree to conduct MFE until January 20008; completed MFE in March 2008 and classified child as emotionally disturbedMother objected to ED rather than OHI labelSlide13

Jackson

v. Northwest School district (pro se case)

IHO Decision:Should not have been classified as early as 2006; school did not unduly delay identifying student as disabled because kept providing servicesShould have conducted manifestation determination before suspension

Failure to provide booklet contributed to delay in identification

No harm from ED rather than OHI classification

Delay in providing home instruction

SLRO Decision:School should have suspected disability in October 2007 and conducted an MFE No need to have conducted manifestation determination because not yet classified as disabledFailure to provide booklet was harmless errorChild not misclassified as ED

But did delay in conducting MFE by five weeks and one day

District Court Decision:

Not disabled as early as 2006

Should have conducted manifestation determination because of sufficient evidence to suspect disability at that time

No harm from failure to be provided booklet

Not misclassified as ED

Other Unaddressed Errors:

Parent should have properly sought reimbursement for testing.

Parent should have pressed for thorough academic evaluation and consideration of SLD diagnosis; child was being socially promoted despite academic failureSlide14

Interpreting test scoresSlide15

STANDARD DEVIATIONS

Three ways to say the same thing:

A standard score of 70

A percentile score in the 2

nd

percentile

2 standard deviations below the meanSlide16

Error of measurement

Scores should be stated as a band that takes into account the error of measurement, which also can be called the confidence interval

Usually, the confidence interval is plus or minus one standard error of measurement

Thus, a 100 on an IQ test might be expressed as being between a confidence interval of 95 and 105. But, that is only a 1 SD level of confidence (68 percent).

If we wanted a 95 percent degree of confidence, would have to consider a confidence interval of plus or minus TWO standard errors of measurement. (Score between 90 and 110.)For 98 percent confidence, would need plus or minus THREE standard errors of measurement. (Score between 85 and 115).

Cases rarely consider error of measurement. See

Adam Wayne D.

v

.

Beechwood Independent School District, 2012 WL 1861041 (6th Cir. May 22, 2012)Kentucky school denied classification as SLD for first grader with IQ of 106 and reading comprehension score of 87. Said he needed 84 to qualify. Still not reading by fifth grade but refuse to classify him as SLD, saying discrepancy isn’t sufficiently severe under Kentucky law. Eventually classified as having a speech and language disorder but refusing to recognize neurological connection to dyslexia. Slide17

Applied to intellectual disability

Ohio definition of “cognitive disability” states:

“Based on a standard error of measurement and clinical judgment, a child may be determined to have significant

subaverage

general intellectual functioning with an intelligence quotient not to exceed seventy-five.” See Ohio Operating Standards, § 3301-51-01(B)(ii). It codifies a confidence ban of 70 to 75 when interpreting IQ results if that band is consistent with a clinical judgment irrespective of the error of measurement of the actual testing instrument.Slide18

Developmental delay category for preschoolers

Ohio identifies five areas of development (physical development, cognitive development, communication development, social or emotional development, and adaptive development) and requires a child to be below the norm by 2 standard deviations in one area or 1.5 standard deviations below the norm in two areas to qualify as a child with a disability.

See

OH ADC 3301-51-11. Slide19

Example of good child find evaluation: XXB

Development: difficulty repeating what he hears, pronouncing words, retaining what he reads, writing coherent sentences, using neat handwriting, remembering math concepts, and singing songs; frequent problems turning words around and mispronouncing similar sounding words

Repeated 1

st

grade but did not benefitKindergarten to first month of 5th grade: Public school

District administered BASC-2, showed some areas of concern but no follow up

5

th

grade: Home schooling

6th and 7th grade: Parochial school; did not re-enroll due to discomfort with religious instruction but performed somewhat better8th grade: Public schoolIntervention study hallSchool claims he doesn’t succeed because not trying hard enoughCurrently failing science and in jeopardy of failing math, social studies and language arts

Self-report that homework intervention not helpful because forgot all the material when took test and still failed

Important

subscores

:

77: written expression 74: oral expression 64: phonemic decoding efficiency

71: story recall-delayed 78: understanding directions 6: fluency

By the time child was identified, he had lost interest in school and higher education!Slide20

jimmy at age 3

Peabody Developmental Motor Scale (Gross Motor)

Balance: 2

nd

percentileNonlocomotor: 10th percentileLocomotor: 2nd percentileReceipt and Propulsion: 4

th

percentile

Total Score: 1

st

percentile SIB-R Adaptive Behavior AssessmentSelf-care: 1st percentileSocial communication 6th percentileTotal Score: 8th percentile Where is Jimmy 1.5 SD below mean?

Where is he 2 SD below mean?

Does he need academic scores to qualify as disabled?Slide21

Consideration of

subscores: IQ score of 98 in 3rd grade on Group-administered Test

National

Percentile Grade

National Percentile Age

NONV: sequences

97

88

NONV: analogies

99*90*Total: NONV9992Memory

17

16

Verbal

6

5

Total

65

45

Jimmy’s IQ is 98 (

45

th

% NPA

) but is there anything average about Jimmy’s aptitude?

Why are Jimmy’s Grade Scores higher than his Age Scores?

What does asterisk mean?

Would you be surprised to learn that Jimmy scored in 75

th

percentile in reading despite verbal aptitude in 6

th

percentile?Slide22

JIMMY Re-Test

Jimmy took an individually administered IQ test with no auditory component

Achieved a standard score of 124 on the verbal portion of the test

Overall IQ now measured at 120 (age-based score)

Academic progress: Jimmy repeatedly scored two grade levels behind his grade on writing but otherwise at or above grade levelWhat’s going on here?Slide23

Jamie rodriquez

Corrected vision of 20/100 in one eye and 20/80 in the other eye

Reads with magnification equipment

Average IQ and average achievement as incoming first grader

Navigation challenges although familiar with building due to older siblingTo qualify, need to demonstrate BOTH an impairment AND adverse educational impact.Specialized instruction does not merely include academic instruction; can include orientation and mobility instructionsSpecialized classroom equipment can avoid the need for specialized instruction, consistent with least restrictive environment ruleSlide24

Learning disabilities

Specific Learning Disability

A disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, write, spell or to do mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia.

The term does not include children who have learning problems that are primarily the result of visual, hearing or motor abilities, of cognitive disability, of emotional disturbance or of environmental, cultural or economic disadvantage.

How will the group determine whether my child has a specific learning disability?

When determining whether your child has a specific learning disability, the group:

May use a process based on your child’s response to certain ways of teaching shown by research to be successful with children at your child’s age and grade level;

May use other procedures that research has shown to be successful; and

Is not required to take into consideration whether there is a severe difference between your child’s intelligence and achievement in speaking thoughts, writing thoughts, reading, understanding what is heard and read and solving mathematical problems. Slide25

Specific Learning disabilities categories

Qualifying Categories

Oral Expression

Reading Fluency Skills

Written ExpressionMathematics CalculationListening ComprehensionReading ComprehensionBasic Reading Skill

Mathematics Problem Solving

PR-06 ETR Form (revised May 10, 2011)

Exclusionary Factors:

A Visual,

Hearing, or Motor DisabilityMental RetardationEmotional DisturbanceLimited English ProficiencyEnvironmental or Economic DisadvantageCultural Factors

Should Jimmy be classified as having a learning disability?Slide26

Learning disabilities & RTI

Discrepancy model is still permitted in Ohio but most school districts have adopted RTI.

January 21, 2011 OSEP opinion letter states that RTI cannot be used as a way to delay evaluation

“It would be inconsistent with the evaluation provisions at 34 CFR 300.301 through 300.111 for an LEA to reject a referral and delay provision of an initial evaluation on the basis that a child has not participated in an RTI framework.”

See Case No. SE 2223-2009 (Sylvania School District): hearing officer criticized school district for insisting on continuing to conduct IAT’s after parental request for MFE and refusing to conduct MFE even though student was failing most of his core subjects despite two IAT attempts. (But parent gets no relief in ridiculous decision; will discuss later.)Slide27

Example of good dyslexia evaluation: XXA

Child repeated first grade which was helpful

First tested during 2004-05 school year and diagnosed with dyslexia in early 2006 (second grade); has been on an IEP since that time

Administered same tests in 2010 and 2012 and results are compared

Written expression declined from 104 to 87Fluency increased from standard score of 2 to score of 5 (with a mean of 10 and SD of 3)

Oral reading quotient increased from 76 to 91 (with mean of 100 and SD of 15)

Rapid digit naming decreased from 9 to 6 (with mean of 10 and SD of 3)

Phonological memory increased from 73 to 88 (with mean of 100 and SD of 15)

IQ documents high-average cognitive ability

“Minimal change in scores does not convey that intervention has not been successful; rather it may illustrate the persistent effect of dyslexia” Continued intervention needed to sustain current level of academic achievement and growth.Slide28

INDEPENDENT EDUCATIONAL EVALUATIONSSlide29

Schaffer

v. Weast: importance of Independent educational evaluations

“[Parents] also have the right to an ‘independent educational evaluation of

the[ir

] child.’ The regulations clarify this entitlement by providing that a ‘parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.’ IDEA thus ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the

firepower

to match the opposition.”Slide30

Independent educational evaluations

34 C.F.R. § 300.502

(

b

) Parent right to evaluation at public expense. (1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency (2) Parent is entitled to evaluation at public expense unless agency demonstrates at a due process hearing that its evaluation is appropriate … (4) The public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the public agency

may not require the parent to provide an explanation

and may not unreasonably delay …

(5) A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.Slide31

When is school’s evaluation “appropriate”?

20 U.S.C. § 1414(b):

Variety of assessment tools and strategies to gather relevant functional, developmental, and academic information,

including information provided by the parent

Not use any single measure or assessment as the sole criterion Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors

Provided and administered in the

language and form

most likely to yield accurate information

The child must be assessed in

all areas of suspected disabilitySpecial rules for assessing specific learning disabilities, including use of scientific, research-based interventionSlide32

OHIO Case: no. SE-2274-2009 (Hamilton Local School District)

District’s MFE not appropriate and parent entitled to an IEE at public expense

District conducted MFE for 8 year old boy and found that he was ineligible for special education

Developmentally delayed; retained in kindergarten

19 days of suspension from school between September 2008 and January 2009In-school suspensions and emergency removals beginning September 2008

Suspended from bus beginning in October 2008; eventually excluded from bus

Parent shared diagnosis of Oppositional Defiant Disorder in January 2009

Parent requested MFE on January 8, 2009

On February 5, 2009, school district concluded that student was not suspected of having a disability because of no adverse effect on educational performance; no manifestation determination review for suspensions because of that decision

District agreed on March 4, 2009 to conduct an MFEStudent expelled on March 5, 2009Mother filed for expedited due process hearing on March 10, 2009March 17, 2009: held both a Resolution session on the expedited due process hearing and the MFE meeting (MFE took only 13 days!)Slide33

Problems with MFE in

hamilton case

Lacked depth because District was in a rush to get it completed; ruled out ED but failed to evaluate for ADHD, ADD, or OIH by fully completing BASC-2

Several team members voiced concerns over short time period of evaluation

Rushed because of pending suspension issueDid not gather any information from student’s bus driver

Functional behavior assessment was not done as part of the MFE

Ignored evidence of problems from three different rating scales:

On BASC-2, student’s teacher ranked him “at risk” and “caution” category for hyperactivity and overall, respectively

Parent rating on BASC-2 was clinically significant for hyperactivity and attention problems

Aggression portion for teacher and parent on BASC-2 was clinically significantSAED showed inappropriate behavior at schoolSensory Processing evaluation showed a problem with social participationNo evaluation of whether he had a Specific Learning Disability despite low scores in verbal comprehension, perceptual reasoning, working memory and in reading and mathToo high a standard for “adversely affects educational performance” – not necessary to be failing in school to receive special education and related servicesSlide34

Kenston Local School District, SEA 1194-2002 (Nov. 25, 2003)

State Level Review Officer:

Affirmed conclusion of the IHO that the child was a child with a disability

School district had denied eligibility because of student’s grading results. But SLRO found that “grades alone are not determinative with whether the child is impacted, or impaired, by her disability. Rather IDEA encourages a more complete examination of all of the educational achievement of the student.”

SLRO found the MFE “replete with evidence that this student struggles with activities necessary to success in school.”Slide35

Adequacy of individualized educational plansSlide36

Rowley v

. Board of Education:Amy’s story

First grade IEP:

Tutor for deaf for one hour per day

Speech therapist for three hours per weekFM amplification deviceIssue:Whether Amy would also receive a sign language interpreterSlide37

Factual background

Three week trial with interpreter scheduled in kindergarten

Ended after two weeks

Amy resisted using his services

Interpreter’s Report: “I would say that as far as interpretive services are concerned, they are not needed at this time. However, this does not rule out the fact that an interpreter will not be needed at a future date when the classroom work becomes more involved and large group discussion becomes the rule.”Moved to new school district in 5th grade where she received interpreterSlide38

Educational benefits standard

Supreme Court repeatedly focuses on the importance of “access to specialized instruction and related services”

State satisfies its FAPE requirement by “providing

personalized instruction with sufficient support services

to permit the child to benefit educationally”The “basic floor of opportunity” consists of “access to specialized instruction and related services which are individually designed to provide educational benefits”Slide39

Applied to amy

rowley

Amy was receiving “substantial specialized instruction”

“We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school is automatically receiving a ‘free appropriate public education.’ In this case, however, we find Amy’s academic progress, when considered with the special services and professional consideration accorded by the Furnace Woods school administrators, to be dispositive.”Slide40

Meaningful education standard

Third and Sixth Circuits support a “meaningful educational benefit standard” under which one would measure educational benefit “in relation to the potential of the child at issue”

Good example of using this standard in Ohio is

B.H.

v. West Clermont Board of Education, 788 F. Supp.2d 682 (S.D. Ohio 2011) (Judge Timothy S. Black)Slide41

codified

IDEA Findings: education for children with disabilities can be made more effective by “having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible”

Department of Education regulations: Children can be classified as disabled and therefore entitled to a FAPE “even though they are advancing from grade to grade”Slide42

Relief FOR PROCEDURAL VIOLATIONSSlide43

Procedural errors that cause harmSlide44

impeded the child’s right to a FAPESlide45

significantly impeded the parent’s opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the parent’s childSlide46

caused a deprivation of educational benefitSlide47

B.H.

v. West Clermont Board of Education, 788 F. Supp. 2d 682 (S.D. OH 2011)

10 year old girl had mental retardation, poorly controlled epilepsy, asthma, selective

mutism

, ADHD, explosive behavior disorder, Cushing’s Disease, autism, and post traumatic stress disorder. She had significant adaptive behavior deficits but no IEP goals for those issues.She received about 45 minutes of speech consult per year but speech therapist did not even know she had a cognitive deficit. Speech therapist sent in report recommending IEP goals without ever attending IEP meeting.

The functional behavior assessment was conducted by an untrained aide. She had a behavior plan with a complicated method for her to earn “points” that she did not have the cognitive capacity to understand. She was frequently restrained, even to the point of requiring hospitalization.

Her guardian repeatedly shared outside assessments and recommendations to school, which were ignored.

Following serious injuries from use of restraints, Guardian transferred child to private day treatment center that used Applied Behavioral Services and no restraints. Child did much better there.

IHO found in favor of Guardian (and child) with regard to nonacademic goals, decision reversed by SLRO, but IHO decision reinstated by federal district court judge

“SLRO opinion is without any evidentiary or legal support and contains virtually no references to the record.”Nonetheless, neither IHO, SLRO nor federal judge found FAPE violation regarding academic progress despite goals that were completely inappropriate for child; concluded she made academic progress that was consistent with her aptitude on the basis of scant evidence of progressSlide48

Procedural/harm analysis

Speech Services

District ignored the documentation of child’s need for speech services from outside experts

Dismissal of District’s speech therapist from the IEP meeting, coupled with notations on the excusal form which indicated level of recommended speech therapy

before the IEP meetings, shows that speech services had been predetermined before the IEP team ever met.OT ServicesNo evidence that District considered the outside evaluations related to child’s need to learn appropriate hygiene, toileting, and self care skills, which also required direct service.

District failed to provide prior written notice for failing to consider outside evaluations.

OT services were “predetermined.” Fact that parent was present does not demonstrate that parent could meaningfully participate.

3. Substantive Harm

Failure to provide child with the necessary related services of speech and occupational therapy constituted a denial of FAPE as well a denial of meaningful participation.

Do not need to find evidence of failing to progress academically to conclude denial of FAPESlide49

Behavioral interventions

Rowley analysis: lack of “meaningful educational benefit”

Why the Behavioral Point System Failed

Rowley

standard:Behavioral regression through the downgrading of goals each yearNo evidence that there was any scientific basis for the point systemThe point system was incomprehensible to childWas unduly punitiveSLRO errors:Failed to recognize importance at looking at both academic AND functional advances. “The IDEA covers students with disabilities that are not per se educational, but require specially designed instruction.”

Failed to recognize that behavior was an essential part of her program.Slide50

SE 2223-2009 (Sylvania School District)

(Ridiculous result; not appealed because child moved out of district)

17 year old child not evaluated over the years despite:

7

th grade, failed second trimester of math8th grade, diagnosed privately with oppositional defiant disorder, ADHD and math disorder; failed many classes; lots of absenteeism and lateness

Parents requested testing in 9

th

grade for 504 plan; reported private test results

School insisted on IAT process first; very haphazard process; no MFE; again failing classes

Parent again requested assistance for 10th grade; another IAT put in place; again haphazard implementationSchool finally conducted evaluation in 11th grade and concluded that impairment not having a “severe negative impact” but continued to receive IAT supportProcedural errors occurred but parent did not demonstrate that student required special education; a mentor was sufficient; so no adverse impact from delay in testingSlide51

The future

Congress amended the Americans with Disabilities Act in 2008 to broaden the definition of disability

Learning disabilities clearly covered

ADHD clearly covered

More and more parents filing Section 504 complaintsHearing officers do not have power to hear Section 504 claims but parents often required to exhaust their IDEA rights before bringing Section 504 claimsNo idea what will happen with DSM-5 and RTI Quite a mess is ahead of us.