Thursday, October 21, 2010

You Be The Judge - Part I

gavel no backgroundImage via Wikipedia
This is a new series.  We will provide you with a nice juicy, yet thorny,  fact pattern and you then get to become the hearing officer or judge.  (Not so easy is it?)  Remember though that special ed law is closed to metaphysics than it is to contract law.  There may not always be a "right" answer.  There may be as many correct answers as there were disparate rulings on the last case to be decided by the Supremes.  Remember also the dialectic of special ed law: it is new law and at the same time the law is changed periodically creating a cycle of uncertainty.  So here you go.  Have fun:
Born in 1994, Opie T. was diagnosed with autism at the age of two. When he entered kindergarten at Mayberry Elementary School in Mayberry Valley School District when he was six years old, Opie began receiving special educational and related services from the school district.
          Opie's special education teacher at Mayberry Elementary, led the effort in formulating an IEP for Opie and working with him through his kindergarten and first grade years. Opie's IEPs for kindergarten and first grade included objectives relating to communication skills, self care (including toilet training), independence and motor skills, social interaction and play skills, and academic functioning. They also specified that Opie would split time between the general classroom and a special education classroom.
          His teacher’s evaluations indicate that Opie made significant progress and achieved many of his IEP goals during the time she worked with him.  She also reported, however, that Opie, like many other autistic children, had difficulty generalizing skills, or, in other words, "apply[ing] the skill[s] to different people or different environments," Opie's difficulty in generalizing the skills he learned in school to the home is borne out by discrepancies revealed in an adaptive behavior skills test that was administered to Opie both in the classroom and in his home.
          In the Fall of 2002, Opie's family moved to Mount Pilot School District, and Opie enrolled in second grade at Mount Pilot Elementary. In anticipation of the transfer, the special education teacher at Mount Pilot visited Mayberry and communicated with his previous teacher, as well as Opie's parents, in order to make plans for a smooth transition. A new IEP was adapted from the IEPs that had been developed at Mayberry, and Opie continued to make progress on his goals and objectives during his second grade year.
          Despite the apparent progress at school during his kindergarten through second grade years, Opie's life away from school during the same time paints a much different picture, as his autism manifested itself in various behavioral problems that were especially severe at home. Opie was unevenly tempered, often displaying inappropriate and sometimes violent behavior at home and in public places such as grocery stores and restaurants. He developed various sleep problems going to bed at odd hours, waking up frequently at night, and refusing to sleep in a bed. Opie also developed a habit of intentionally spreading his nighttime bowel movements around his bedroom. In addition, although Opie became toilet trained at school by the time he was in first grade, he was not able to transfer this skill to the home and other settings away from school.
          Understandably, these behaviors took a tremendous toll on Opie's family. Worried that, without intervention, Opie's behavior would become only more dangerous as he continued to grow physically, the family began looking into residential placement options. Through research on the Internet, they discovered the Big Ticket School ("BTS"), which specializes in education of children with autism. Students enrolled in the residential program at BTS live at the Boston campus for 44 weeks out of the year and are supervised 24 hours a day by BTS educators and staff. Opie's family, along with his former teacher , who kept in touch with the family and retained an interest in Opie's education, visited the BTS campus in late Fall 2003 and filled out an application for Opie's admission during the visit.
          At around the same time, Opie's family asked an occupational therapist who runs a private day school for autistic children, as well as his previous teacher, to observe and assess Opie while at school. The OT observed Opie at Mount Pilot Elementary for a three hour period, interviewed Opie's parents, and reviewed charts and video footage of Opie. She reported a number of concerns in the school's work with Opie, including the facts that staff sometimes unknowingly reinforced Opie's unwanted behaviors, that Opie had made little or no progress on many of his goals and objectives, and that Opie had "[g]reat difficulty generalizing skills taught in one environment to natural daily living routines." The OT also expressed concern that Opie had "increase[d] the strength and number of challenging and unwanted behavior[s]" and that, since transferring to Mount Pilot Elementary, Opie had apparently regressed in certain respects. The OT did, however, note many areas in which Opie was improving and stated that "throughout his early education, Opie has made good progress in all areas of development." The OT recommended, among other things, "12 month programming to reduce the risk of regression," increased consistency in training of school staff, and additional parent training. For her part, the previous teacher met with Opie and administered the Autism Diagnostic Observation Schedule test. She reported to Opie's parents that some skills that Opie had previously mastered during his time working with her at Mayberry Elementary were diminished or were no longer present.
          On December 16, 2003, Opie's parents met with his teachers and other school officials for an IEP review meeting. At the meeting, the parents presented a list of goals they had developed based on recommendations from the OT and asked that the goals be included in Opie's IEP for 2004. They also stated, however, that they felt the goals were not attainable at Mount Pilot Elementary and that the only appropriate placement for Opie would be a residential program tailored to autistic children, such as that offered by BTS. The school district officials expressed openness to revising Opie's IEP to include the parents' proposed goals and to working with them to improve their special education program. But they also expressed their belief that the proposed goals were attainable at Mount Pilot Elementary and that residential placement was not necessary. At the meeting's conclusion, the school district officials stated that they planned to revise Opie's IEP and then submit a new draft to the parents.
          Two days after the IEP meeting, on December 18, BTS accepted Opie's application for enrollment. The next day, on December 19, counsel for Opie's family sent the school district a letter stating that the family intended to remove Opie from Mount Pilot Elementary, enroll him at BTS, and seek from the school district reimbursement of the costs of Opie's education at BTS. Opie officially enrolled as a residential student at BTS on January 12, 2004.
          On January 15, 2004, the school district sent to Opie's family a revised, final IEP for 2004. The IEP proposed by the school district incorporated virtually all of the goals requested by the parents, but it called for continued placement at Mount Pilot Elementary rather than the residential placement requested by the parents. Opie's family rejected the IEP, and Opie remained enrolled at BTS.
           You are the hearing officer - how do you rule?
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  1. I thought I posted a reply to this, but it was on Facebook, but it doesn't seem to be there either????

  2. The first step should be to implement the requested goals in the original school setting. THEN if he is not making progress, move him to the residential placement in an effort to provide the LEAST restrictive environment... no?

  3. i'd first go with implementation of the revised goals with more intensive and different sdi, full compliment of supplementary aids, supports and services in the reg ed classrooms, with a supplemental home program.
    if no progress or regression occurs in 6 weeks, iep team is to move down the continuum of lre, repeat if needed until there is a proper place for the revised intensive and different sdi to be implimented being sped is a service, not a place.

  4. It sounds like Opie was already not making progress in the least restrictive setting and Mount Pilot had the responsibility to already have been working on the goals they thought were the most appropriate.

    Without the benefit of knowing the goals as written and the reasonableness that Mt. Pilot would be able to implement them, it appears that the parents know Opie best and the school agreed when they agreed to add the parents goals.

    If Mt. Pilot was able to afford Opie FAPE in the least restrictive setting, they should have already been doing that.

    Should the parents unilaterally place Opie in the residential setting and he is able to make adequate progress, then I believe current law supports a case of reimbursement to the parents for the tuition and costs at BTS.

  5. Here's what I'm thinking, without knowing the appropriatness of the goals. If the district argued based on the statement "that Opie had made little or no progress on many of his goals and objectives", they could try to present a case that he is making progress on "some" of his goals. The old "floor of opportunity" crap...I mean "defense".

    If parents were successful at dp related to the appropriatness of a more restrictive setting based on "educational needs" the district would surely argue against paying for the "residential portion".

    The student's issues at home are beyond the responsibility of the district (or so they will argue) and if part of the decision for residential placement is based on what is going on at home, that would fall to the parents.

    Unilateral placement is risky. Without fitting into one of the categories of "exceptions" to the notification requirements, a unilateral placement is at the parent's risk. The district has to be afforded the opportunity to correct the deficiencies first.

  6. need to know what the sdi for each goal was and the revised version, their pwn of why the revised iep can be implemented in the lre they propose

  7. I think it's important to know why the proposed goals can't be met in the current setting. Without more information, I'd be very reluctant to advise the parents to unilaterally place Opie (or would at least stress that there's a very real possibility that they won't be reimbursed).

  8. I think I might rule in favor of the school district, because it never had a chance to implement the revised IEP.

    This reminds me a little bit of the Tom F. case, except that kid never spent any time in public school. The fact that "Opie" did spend some time in Mount Pilot might be a point in his family's favor.

  9. I know this is late.

    I don't understand why generalization was not a school responsibility in view of 20 USC 1400(d) and 34 CFR 300.1.

    TITLE 34--EDUCATION PART 300_ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES--Table of Contents Sec. 300.1 Purposes. Purposes and Applicability The purposes of this part are--
    (a) To ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special
    education and related services designed to
    1) meet their unique needs and
    2) prepare them for further education, employment, and independent living; (Numeration added)

    Without generalization , the above stated purposes are impossible. I would think that generalization is an implied goal for every child or we are wasting our time.

    But I guess that is a battle for another day.

  10. It appears that in this case generalizing was not the only issue. If generalizing was the main concern, then the case out of the 10th Circuit in 2008, THOMPSON R2-J SCHOOL
    DISTRICT vs L.P., says generalizing is not part of Rowley. I understand what you are saying Perry, but that is one of those where does the line fall questions.

    It still sounds like in this case that Opie was having behaviors at school as well that were an issue. In which case, the school has a responsibility to develop an IEP which provides FAPE.. From the beginning, not just when a parent contests the IEP.

  11. Very late, but...Moving this student to the BTS school would constitute him being placed in the most restrictive learning environment... this is a giant step from Opie attending a general education public school. A residential treatment program may or may not be appropriate in the future, but the information provided does not justify such a drastic placement now. If I were the hearing officer I would want to see the present school: implement the new goals on a consistent basis, develop a Functional Behavior Assessment and Behavior Intervention Plan (with the ongoing support of a Behavior Specialist), and add Extended School Year to help curb regression.
    Opie's severest issues manifest more in the home, than at school. Family counseling sessions appear to be in order.

  12. Thanks Anon,

    See the post with the "answer."


  13. I would rule on behalf of the school district. If they accepted the goals, then it seems that the problem is solved. The school setting described by the parents does not sound like the LRE.

    1. Whitney,

      thanks for your comment