IDEA Legal Update MADISON CITY BOARD OF EDUCATION - PowerPoint Presentation

IDEA Legal Update MADISON CITY BOARD OF EDUCATIONJANUARY 18, 2019 Presented by : Rodney C. Lewis, Attorney-at-Law (rcl@lanierford.com) 1

Y.N. v. BOARD OF EDUCATION OF HARRISON CENT. SCH. DIST. In evaluating a student for IDEA eligibility under a potential OHI classification, the school district did not conduct a classroom observation as required by the state’s IDEA regulations. The student was found ineligible for services under the IDEA. The parent filed a due process complaint challenging the eligibility decision. 2

Y.N. v. BOARD OF EDUCATION OF HARRISON CENT. SCH. DIST. The court concluded, after an extensive review of all of the information and evaluations available to the IEP team in determining the issue of eligibility that "the hearing record establishes that the District considered evaluative information that provided a considerable amount of information regarding [S.N.’s] eligibility status," and thus "failure to obtain a classroom observation did not render the District unable to make an appropriate eligibility determination”. 3

Y.N. v. BOARD OF EDUCATION OF HARRISON CENT. SCH. DIST. The district's failure to conduct a classroom observation of the student was a procedural violation that did not result in a denial of FAPE. A procedural misstep violates the IDEA only if it: 1) impeded the student's right to FAPE; 2) significantly impeded the parents' opportunity to participate in the decision-making process; or 3) caused a deprivation of educational benefits. 4

Y.N. v. BOARD OF EDUCATION OF HARRISON CENT. SCH. DIST. Although the district failed to observe the student in the classroom, it reviewed the student’s test scores, observed the student's performance in evaluations, and considered the student's report card from three school years in developing the student's IEP. The court held by taking these steps, the district protected the student's FAPE rights and the procedural error at issue did not rise to the level of a substantive error. 5

N.A. v. BOARD OF EDUCATION OF CLARKSTON Court found that school district enied FAPE to an elementary school student with a specific learning disability by providing response to intervention services for 16 months before evaluating him for IDEA services. The IDEA is silent as to how long a district may attempt RTI services before referring a student for a special education evaluation. If the state or local educational agency hasn't set its own guidelines, educators should use a commonsense approach to referrals. 6

N.A. v. BOARD OF EDUCATION OF CLARKSTON The student in this case received Tier 1 and Tier 2 interventions for seven months during kindergarten and received Tier 3 interventions for an additional nine months. The school’s data showed minimal progress by the student during his participation in RTI.Court stated that the student’s limited progress in RTI did not justify the district’s ongoing decision to delay an IDEA evaluation, especially when its usual practice was to limit each RTI intervention tier to eight weeks. 7

L.C. v. TUSCALOOSA COUNTY BOARD OF EDUCATION Court upheld school district’s finding of a student ineligible as SLD where the student was performing at least as well as anticipated for a child of his age and grade. Not only was he mastering grade-level standards in all academic areas, but he exceeded benchmarks on the district's reading assessment.The Court based its finding on the IDEA requirement that a student’s impairment must adversely affect educational performance and the absence of data establishing such an affect. 8

L.C. v. TUSCALOOSA COUNTY BOARD OF EDUCATION The evaluation established that the student performed at or above grade level in all academic areas and had average scores on behavior rating scales. The evaluation data further established that the student was mastering grade-level standards in all academic areas and exceeded benchmarks on the district's reading assessment. The student’s scores on the specific assessments provided as part of the evaluation were consistent with the student’s grades and school-wide assessments. 9

E. E., et al., v. TUSCALOOSA CITY BOARD OF EDUCATION Parent raised several procedural challenges to a school district’s determination that her child was not eligible for special education services under a specific learning disability category.In evaluating whether a procedural defect has deprived a student of a FAPE, a reviewing court will consider the substantive impact of the procedural defect, and not merely the defect per se. 20 U.S.C. § 1415(f)(3)10

E. E., et al., v. TUSCALOOSA CITY BOARD OF EDUCATION A procedural error only rises to the level of an actionable or substantive error when it is established that the procedural violation [1] impeded the child's right to a free public education; [2] significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a free appropriate public education to the parents' child; or [3] caused a deprivation of educational benefits. 11

Procedural Errors Raised by Parent 1. One of the two classroom observations of the student conducted as a part of the evaluation had not been made available to the eligibility determination team.2. The evaluation included the use of a behavioral rating scale completed by a teacher who had not known the student for the required time period required.3. The District’s delay in providing requested PST records to her in a timely manner. 12

Decision of Court The Court concluded that the Parent had failed to establish that any of the reported procedural errors rose to the level of a substantive IDEA violation. The Court found no evidence that the District’s determination that the child did not have a SLD would have been different in the absence of the procedural errors raised by the Parent. 13

MR. and MRS. DOE v. CAPE ELIZABETH SCHOOL DISTRICT Reviewing Court found a school district’s SLD eligibility determination to be in error due to the district’s overreliance upon a student’s good grades in determining the student to be ineligible under the IDEA. The student’s evaluation data established that she had earned straight A's and had earned above-average scores on statewide assessments. 14

MR. and MRS. DOE v. CAPE ELIZABETH SCHOOL DISTRICT District relied upon these facts in concluding that the student did not exhibit a specific learning disability pursuant to the requirements of 20 U.S.C. § 1401(3)(A)(i) or that the student "needed" special education and related services as a result of a SLD even if such a disorder had been established. 15

MR. and MRS. DOE v. CAPE ELIZABETH SCHOOL DISTRICT The Court noted that specific assessments of the student in the area of reading fluency established significantly below average scores. The Court concluded that those assessments at least suggested that the student might have an SLD despite her otherwise strong academic performance.In determining eligibility, a school district must still consider how a student’s good grades/high scores on statewide assessments relate to a student’s specific areas of deficits and whether more specific measures may indicate the presence of a SLD. 16

D.J.D. v. MADISON CITY BOARD OF EDUCATION , 72 IDELR 273 (N.D. Ala. 2018)Parent filed a child-find claim against a school district due to fact that the student had not been referred for an evaluation under the IDEA. The school had not referred the student for an evaluation due to the student’s ongoing and successful participation in its pre-referral process and the absence of a need of the student for special education services. 17

D.J.D. v. MADISON CITY BOARD OF EDUCATION, 72 IDELR 273 (N.D. Ala. 2018) The Court, relying upon the student’s lack of a need for specialized instruction and the school’s appropriate use of pre-referral interventions, rejected parent’s IDEA child-find claim. 18

D.J.D. v. MADISON CITY BOARD OF EDUCATION, 72 IDELR 273 (N.D. Ala. 2018) The court noted that the IDEA does not require a school district to evaluate every student who exhibits some degree of learning or academic problems. Rather, the IDEA requires a district to evaluate students who are suspected of having disabilities and needing specialized instruction as a result. 19

D.J.D. v. MADISON CITY BOARD OF EDUCATION, Defendants, 72 IDELR 273 (N.D. Ala. 2018)Based on the record here, the court finds that the school did not overlook "clear signs of disability" behavior and were not "negligent in failing to order testing, "because the school had a "rational justification for not deciding to evaluate“. The school justified its decision by showing that the first IEP team used pre-referral intervention before placing D.J.D. in special education, as schools are encouraged to use "measures besides special education to assist struggling students." 20

LETTER TO ZIRKEL, Office of Special Education Programs, U.S. Department of Education. (May 10, 2018). 34 CFR 300.309(b)(2) requires that a school district in determining eligibility under the IDEA consider data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, and of which was provided to the child's parents. The purpose of this regulation is to ensure that underachievement in a child suspected of having an SLD is not due to lack of appropriate instruction in reading or math. 21

LETTER TO ZIRKEL, Office of Special Education Programs, U.S. Department of Education. (May 10, 2018) OSEP clarified that a school district solely utilizing a severe discrepancy model to determine SLD eligibility isn't required to implement a RTI program with a student in order to comply with 34 CFR 300.309(b)(2)."Rather, a school district can meet this requirement through the IDEA evaluation process or through formal assessments based on the regular instructional program."22

J.O. v. LIMESTONE COUNTY BOARD OF EDUCATION, 63 IDELR 166 (11th Cir. 2015).Court upheld school district’s determination that a fourth grader who struggled in math and reading was not eligible for special education services in the category of a SLD. The district had used a severe discrepancy model in determining that the student did not have a SLD. The Parent challenged the eligibility determination because a comparison of the student’s scores on assessments included in the evaluation as selected by the Parent would result in a finding of a severe discrepancy. 23

J.O. v. LIMESTONE COUNTY BOARD OF EDUCATION , 63 IDELR 166 (11th Cir. 2015).The Parent contended that the District should have used a new IQ score from an IEE and a previous achievement test provided by the District in conducting its severe discrepancy analysis. The Court rejected this contention holding that a school district utilizing a severe discrepancy model to determine the existence of an SLD has the discretion in selecting which assessments to utilize in conducting its severe discrepancy analysis. 24

J.M.v. LEANDER INDEPENDENT SCHOOL DISTRICT, 72 IDELR 25 (W.D. TX 2018). Court concluded that school district erred in finding a student diagnosed with ADHD and dysgraphia ineligible for special education services. The school district contended that the student was not eligible for services as the evaluation data established the student was already adequately accessing his general educational program and thus he did not "need" special education or related services under 34 C.F.R. § 300.8(a)(1). 25

J.M v LEANDER INDEPENDENT SCHOOL DISTRICT, 72 IDELR 25 (W.D. TX 2018). The District in reaching this determination primarily relied upon the fact the student was earning A’s and B’s in his classes. The Court reversed the District’s finding of non-eligibility due to evaluation data establishing that the student had failed benchmark tests in math, reading, and written expression as well as due to teachers’ statements in the evaluation data indicating that the student's impairments were affecting his classroom performance. 26

URBANDALE COMMUNITY SCHOOL DISTRICT, 70 IDELR 243 (2107). An administrative law judge (ALJ) ruled that a school district erred when it found a student ineligible for special education services based upon evaluation data demonstrating adequate classroom performance and progress by the student. The District maintained that the student's adequate performance and progress in the general education setting showed that the student did not have a need for specialized instruction. 27

URBANDALE COMMUNITY SCHOOL DISTRICT, 70 IDELR 243 (2107). The District agreed that the student’s current adequate performance in the general education setting was primarily the result of the general education interventions and accommodations she received under its RTI program. Upon review, the ALJ found the District’s position to be in error as the RTI interventions provided to the student were so individualized and intensive that such services were in fact “specialized instruction” instead of services typically provided through the general education instructional program. 28

URBANDALE COMMUNITY SCHOOL DISTRICT, 70 IDELR 243 (2107). The student received targeted individualized instruction in reading and math for three consecutive school years. Such instruction included one hour of one-to-one tutoring almost every week during the summer between fourth and fifth grade. The ALJ pointed out that this tutoring was specifically designed to address those gaps the student had in her math skills. 29

AVILA v. SPOKANE SCHOOL DISTRICT 81, 686 F. App'x 384 (9 th Cir. 2017).Parent requested that school district evaluate her child for dyslexia and dysgraphia. Following district’s finding of non-eligibility, parent filed a due process complaint claiming that the particular assessments utilized by the District to assess her child’s reading and writing deficits were inadequate. The Court disagreed finding that the assessments utilized by the District were consistent with the IDEA regulations and assessed multiple areas of potential deficits commonly associated with reading and writing deficits. 30

Q.W., v. BOARD OF EDUCATION OF FAYETTE COUNTY, KENTUCKY, 630 F. App'x 580 (6th Cir. 2015).Court upheld school district’s finding of non-eligibility under the IDEA. The evaluation data established that despite the student’s diagnosis of autism, the student excelled academically and behaved just like any other child in his class. The Court rejected the Parent’s argument that her son's social and behavioral difficulties outside of school demonstrated his need for special education services. 31

Q.W., v. BOARD OF EDUCATION OF FAYETTE COUNTY, KENTUCKY, 630 F. App'x 580 (6th Cir. 2015).The Court concluded that the term “educational performance” is not broad enough to include any difficulties a child might experience away from school. The Court agreed that "educational performance" may encompass more than academic achievement, to even include areas of social and psychological needs, noting that the IDEA itself suggests as much by requiring districts to use a variety of assessment tools when gathering information about the student's eligibility. 32

URBANDALE COMMUNITY SCHOOL DISTRICT, 70 IDELR 243 (2107). The Court concluded the term "educational performance" is limited to school-based difficulties. Absent evidence that the student's in-home conduct adversely affected his learning, the Parents could not demonstrate the student's need for special education services.33

QUESTIONS 34