Monthly Archives:' August 2015

OAH: Deteriorating Behavior Justifies Reevaluation Over Parent’s Protests

GirardEdwards_image05Author: Eric Stevens, Attorney at Law 

Summary: The Office of Administrative Hearings (“OAH”) held that a teen’s deteriorating behavioral issues interfered with his ability to learn, thereby justifying a triennial evaluation despite a mother’s refusal to consent.  Grossmont Union High School District, OAH Case No. 2015020647 (March 26, 2015).

Facts: Student was a 14-year-old ninth grader eligible for special education and related services under the primary eligibility category of Emotional Disturbance, and the secondary eligibility category of Other Health Impairment due to attention deficit hyperactivity disorder.  His last triennial assessment was conducted in April 2012 while in middle school where he was placed in a behavior related special day classroom.

Student enrolled in the high school district for the 2014/2015 school year.  His first interim IEP meeting was held in early September, and the District recommended continuation of special day classes and counseling.  Student’s Mother did not consent, and requested full inclusion and a discontinuation of counseling.  The District agreed to Mother’s requests.

Student’s behavior deteriorated.  In October, Student was caught smoking marijuana while engaging in a sexual act with a non-student on campus.  A manifestation determination review and IEP were held.  The incident was determined to be a manifestation of Student’s emotional disturbance, and Student was suspended for five days.  During the IEP meeting, the District recommended a comprehensive assessment plan to Mother.  At the time, Mother said she needed to think about the assessment plan.

Student returned to school but continued to accumulate discipline citations, detention, and another suspension.  The IEP team reconvened on November 17, 2014, and again recommended the assessment plan, but Mother refused her consent.  On November 21, 2014, Student was again caught under the influence of marijuana while trying to jump a fence into a football game.

A December 5, 2014, manifestation determination concluded that the latest expellable incident was not a manifestation of Student’s emotional disturbance.  As a result, the IEP team recommended placement in an interim alternative educational setting due to the drug offense while the District sought to expel Student.  Mother refused her consent.

District requested OAH mediation on December 9, 2014, but Mother refused to participate.

District wrote Mother on December 17, 2014, reiterating its position regarding the need to assess Student and the impending February 2015 deadline for a triennial evaluation.  The District explained that Mother’s failure to consent to a reevaluation was jeopardizing the District’s ability to provide Student with FAPE.

Student was incarcerated, and upon release Mother enrolled him at the interim alternative educational setting.  While enrolling Student, the District again provided Mother with a copy of its assessment plan and requested her consent.  Mother still refused, and District filed a due process complaint against Mother seeking an order allowing the District to reevaluate Student over the parent’s objection.

Issue: Was the District allowed to reevaluate Student over Mother’s refusal to consent?

Holding: Yes, the District could proceed to assess the student over Mother’s objections because (1) Student was new to the District, and District had not yet assessed Student, (2) Student’s “outrageous behaviors, disciplinary actions, and multiple suspensions” indicated a need to assess the Student, and (3) District established its need to conduct a comprehensive triennial IEP based on Student’s escalating behavioral problems.

Discussion:  Schools and parents both have rights under the IDEA when it comes to evaluations.

A district must ensure that a student is assessed in all areas related to a suspected disability.  20 U.S.C. § 1414(b)(3)(B); Educ. Code § 56320(f).  The assessment must be sufficiently comprehensive to identify all of the student’s special education and related services needs.  34 C.F.R. § 300.304(c)(6).

Normally, a district needs parental consent before conducting an assessment.  34 C.F.R. § 300.300(c)(1).  However, a district may conduct an assessment without parental consent if it can prove that it made “reasonable efforts” to obtain consent, but the student’s parent has “failed to respond.”  34 C.F.R. § 300.300(c)(2).

Here, OAH found that the District adequately documented its repeated efforts to obtain Mother’s consent to assess Student.  The District raised the issue with Mother at the start of the school year and subsequently presented Mother with a complete assessment plan on four other occasions, as well as seeking OAH mediation to resolve the issue.  The District also demonstrated that the assessments were necessary to determine Student’s needs.  OAH’s decision implied that it considered Mother’s earlier resistance to the assessment plan and decision not to engage in mediation as a “failure to respond,” and OAH allowed the District to proceed with the triennial assessment.

Take Away:

This case is an example of OAH’s focus on the needs of the student, the extent of a local educational agency’s (“LEA”) efforts to obtain consent, and the strength of a LEA’s documentation of those efforts when a parent or guardian will not consent to special education assessments.  LEA’s are always in a stronger position when they document their efforts in writing.  The burden is also on a LEA to demonstrate that a reassessment is needed.  Sometimes a LEA has no choice but to file a due process complaint to obtain a court’s consent to hold an assessment despite a parent’s protests.

While not addressed in this case, at times a parent may consent to an assessment, but impose so many conditions and restrictions that it may not actually constitute consent in the eyes of the law.

Remember that parents have the right to information about the types of assessments a LEA plans to conduct, but parents may not dictate the terms or set conditions for an evaluation for special education purposes.  For example, you may encounter parents who provide written consent but attempt to include additional conditions like: (1) the parents must be present during the testing, (2) the evaluator must meet with the parents before or after the evaluation, (3) the parents must approve each of the testing instruments to be used, (4) the evaluator must discuss the evaluation results with the parents before sharing the results with the IEP team, (5) the evaluation cannot be used in litigation with the parents, and (6) the parents would determine who would conduct the evaluation.

Generally, such conditions are considered an effective denial of consent. As a result, the district is not required to proceed with the evaluation subject to those conditions.  Legal authority upholds a district’s right to select the individuals to conduct the evaluations, and defers to the professional judgment of the evaluators for how the evaluation process should work to obtain the best information regarding a child’s abilities and needs.

 

Top Five Back to School Tips for Special Education Administrators

GirardEdwards_image03Author: Heather Edwards, Attorney at Law 

Along with new backpacks, new lunchboxes, and smiling faces, the start of a new school year often brings to schools new IEPs to implement and new members to a student’s IEP team. Here are our top five tips for a great start to the 2015-16 school year:

1. Make sure staff members are informed and have a clear understanding of each student’s IEP for which they are responsible including the specific accommodations, modifications and supports that must be provided – from general education teachers, to special education teachers, to related service providers.

2. Ensure that a child’s entire IEP is accessible to any and all staff or service providers who are responsible for its implementation.

3. Make certain that all previous equipment and materials required by a child’s IEP are in place when school starts.

4. Have open avenues of communication with parents who may be anxious about changes to their child’s program or particular service provider. For example, having a clear communication protocol so parents know who to talk to and when.

5. Consider providing training to staff to strengthen their communication skills including offering conflict resolution strategies and emphasizing the importance of presenting information clearly, tactfully, and with empathy in IEP meetings and assessment reports.

Best wishes for a successful 2015-16 school year!

 

Observation Is Not Evaluation

GirardEdwards_image01Author: David Girard, Attorney at Law 

A one to one aide’s data collection and observations of a student with autism’s worsening behavior did not amount to an informal evaluation. A proper evaluation requires:

– A variety of assessment tools;

– A variety of strategies; and

– A qualified assessor.

Worsening behavior can require a new evaluation. Here, the court held that the District failed to use a variety of assessment tools and strategies to evaluate the student’s behavior by merely conducting an observation and collecting data. Furthermore, the aide, who was seeking her board certification in behavioral analysis, did not appear to be qualified to conduct a functional behavioral assessment. Consequently, the District’s failure to assess Student’s behavior constituted a procedural violation of the IDEA.

Practice Tip:  Along with direct observation in conducting an FBA, other tools and strategies may include interviews of key individuals to determine concerns and perspectives about the student and to identify the events associated with the occurrence and nonoccurrence of certain behaviors, review of records, and use of checklists and questionnaires for insight into the function of maintaining certain behaviors.

M.S. by Sartin v. Lake Elsinore Unified School District (7/24/15) 13-CV-01-1484-CAS (SPx); 115 LRP 33700.