Thursday, December 9, 2010

You Be The Judge - Part III

Gavel | Andrew F. Scott: P6023391Image by afsart via Flickr
This is the third installment in 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. Remember to let us know what you think.  Enjoy:

Jimmy was born on May 10 2001, and he was diagnosed with autism, among other conditions on October 2 2003.   Jimmy was found to be eligible for special education and related services as a preschool special needs student. He began attending preschool in the school district in approximately December, 2004.
          Between January 10, 2005 and May 25, 2005 there were five IEP team meetings for the student.  At the January 10 meeting the school district representatives placed a draft IEP on the table and asked the parents to sign it so that they could get on with the business of educating children.  The parents balked and asked to discuss the proposed IEP.  The LEA staff agreed to do so although their resentment was palpable.  The meeting was not completed because it had been scheduled for twenty minutes and according to the meeting notes, the “pesky questions” from the parents “ruined everything.” The meeting was rescheduled for January 17th.
          At the January 17th meeting, the parents appeared with an “advocate’” who was another parent who had lost five previous due process hearings against the school district.  The advocate was disrespectful of the LEA personnel frequently demanding that they explain their education, experience and other credentials in detail. She frequently referred to the special ed director as “jackass.”
          After two hours, the meeting was reconvened on January 30th.  The meeting was scheduled for the whole school day.  The meeting note reflect that the student’s father and the “advocate” “engaged in delaying tactics.”  The parent spent four hours asking questions concerning the meaning of the goal “manages his clothing.”  The meeting was contentious and tempers flared many times.  The special education teacher, weary of being questioned as to her qualifications told the parent late in the afternoon to “shut up and sit up straight.”
          The meeting was rescheduled for February 12th.  At this meeting the parent and the “advocate” demanded that the IEP include 30 hours of discrete trial training and a dedicated one-on-one aide and occupational therapy because the research shows that all autistic children require these services. The LEA personnel refused noting that the district has an “eclectic” methodology program that it uses for all autistic children. The impasse was never resolved.
          Another IEP team meeting was convened on May 25, 2005. At this meeting the school district personnel developed an IEP for Jimmy.  The IEP featured the school district’s eclectic methodology in an inclusion setting.  Jimmy also received a two hours per week of speech-language therapy as a related service.  No prior written notice was issued by the school district.
          Jimmy made progress toward his 19 of his 24 IEP goals and in the general curriculum during the rest of the 2004-2005 school year. But in the first half of the next school year, he made progress toward only two of his 24 goals.
          On July 5, 2005, the student’s IEP team met and the parents requested that the student be evaluated for occupational therapy.  On August 3, 2005, the schools district’s occupational therapist conducted an evaluation of Jimmy. He was able to cut with scissors, zip and unzip a book bag and button and unbutton a large button. He was on age level with fine motor skills and adult daily living skills. The therapist concluded that occupational therapy was not recommended for Jimmy.
          On September 15 and 16, 2005, the schools preschool special needs specialist/lead teacher made formal observations of Jimmy in his classroom. She found during said visits that Jimmy's program was appropriate and that he was making educational progress despite his lack of progress toward his IEP goals.
          On September 25, 2005, the IEP team was reconvened at the parents request.  The parents said nothing at all during the entire meeting.  The advocate was not present at the meeting.  The parents appeared to have been arguing loudly with each other just before the IEP team meeting.  The LEA members of the team drafted an IEP that was identical to the previous school years IEP, with no changes even to present levels of performance.
          On September 27, 2005, the parents filed a due process complaint.
          You are the hearing officer - how do you rule? 
 (Hint this is not a real case- or at least not one real case.)
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  1. Collaborating with the parents in the beginning would have gone a long way in avoiding this issue. It is important to remember that not only is parental participation the law, but not doing this can lead to significant time and difficulty in the future.

    By the way Jim, in that state with those pesky advocates, we still have districts putting the draft in front of parents saying just sign it but they are now scheduling 30 minute meetings ;)

  2. A district has an affirmative duty to provide FAPE, regardless of a parent’s
    actions or vigilance in seeking FAPE for his or her child. M.C. v. Central
    Regional School District, 81 F.3d. 389 (3d Cir. 1996).

    and order an instructional evaluation

  3. Did you ever post "the answer" to this "you be the judge"? I can't find one.

  4. I thought I did, but i can't find it. Now I'm too embarrassed.


  5. :)
    It's a very fun hypothetical!