IEP Goals Do Not Have to Specifically Address Every Need So Long as IEP Is Reasonably Calculated to Enable Appropriate Progress
The U.S. District Court for the Eastern District of California ruled that an individualized educational program’s annual goals do not have to correspond one-to-one with a student’s specific, identified needs to provide a free, appropriate public education. (Tehachapi Unified Sch. Dist., 69 IDELR 241.) IEP goals are reviewed holistically to determine whether the IEP will address the educational needs resulting from a student’s disability. If a student’s educational needs can be met by an IEP, the student is not denied a FAPE merely because each need is not linked to a specific goal.
Student was eligible for special education and related services because she had autism. Multiple IEP meetings were convened in 2013 and 2014. In March 2013, Student’s IEP team determined that staying focused was her greatest need and developed annual goals in areas like following instructions, verbalizing, writing, reading, math, and social/emotional behavior. Student did not receive goals that specifically addressed maintaining attention and staying on task. Student filed for a due process hearing with OAH alleging, among other things, that District denied Student a FAPE by not including goals in Student’s IEP which specifically addressed maintaining attention and staying on task.
An administrative law judge (“ALJ”) disagreed with Student, finding that Student’s IEP goals were appropriate. The ALJ concluded that Student’s attention to task was adequately addressed by goals addressing Student’s ability to comply with directions, and with accommodations in the IEP like a visual schedule, giving on-task reminders, and provision of a one-to-one aide.
On appeal, the U.S. District Court upheld the ALJ’s ruling. The District Court relied in part on a decision from the Second Circuit Court of Appeals (overseeing New York, Vermont, and Connecticut) which held that an IEP which does not specifically address goals and objectives toward a need, but which has goals which enable a student to make progress in the area of need, may be substantively sufficient under IDEA. L.O. ex rel. K.T. v. New York City Dep’t of Educ. (2d Cir. 2016) 822 F.3d 95, 118-19. The District Court found this persuasive, reasoning that IEP annual goals must meet a student’s needs, but that the IDEA does not require that the goals correspond one-to-one with specific, identified needs. Applying the recent Endrew F. decision (see our earlier Legal Alert, (2017) 137 S.Ct. 988), the District Court focused on whether the IEP was “reasonably calculated to enable [Student] to make progress appropriate in light of [her] circumstances.” The District Court concluded that Student’s IEP was reasonably calculated to enable appropriate progress, and that “[t]he precise form that a goal takes is a question of educational policy, and courts should not ‘substitute their own notions of sound educational policy for those of the school authorities which they review.’” Citing Bd. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, (1982) 458 U.S. 176, 206.
In light of the recent Endrew F. decision, courts may begin to scrutinize more closely the contents of IEPs, including annual goals and objectives. IEP teams need to gather quantifiable baseline data regarding a student’s unique needs from which to develop robust, detailed and measurable goals for the child’s expected performance of each skill after a year’s time. Additionally, if a student’s annual IEP goals are the same or appear substantially similar year-to-year, that is a red flag and may indicate that the student is not receiving FAPE.
Local Educational Agencies are Required to Consider Parent Requests for Insurance-Funded ABA Aide to Attend School with Student at an IEP Team Meeting.
In Student v. Tehachapi Unified School District (OAH Case No. 2016110289), 117 LRP 17194 (April 24, 2017), the Office of Administrative Hearings held that Student was denied a free appropriate public education when the school district failed to discuss and consider the parent’s request to allow an insurance-funded aide to accompany Student at school.
FACTS: Student was a 10 year old girl, eligible for special education under the categories of autism and speech and language impairment. Student’s parent received approval from her medical insurer for funding of 40 hours a week of services from a trained applied behavior analysis (“ABA”) aide, and supervision of the aide by a Board Certified Behavior Analyst. The services could be provided to Student in her home or school. This approval was based on a recent functional behavior assessment of Student. Student’s physician wrote a note on a prescription form ordering Student to receive ABA therapy at school from the insurance funded ABA aide. Parent provided the ABA prescription from Student’s doctor and the functional behavior assessment it was based upon to the District. Parent then asked that an IEP meeting be held to discuss the prescription and Parent’s request that Student’s insurance funded ABA aide be permitted to accompany Student at school to provide her with ABA services.
Before the IEP meeting was held, District’s Director of Programs conferred with other District administrators and determined the District would not honor the ABA prescription and would refuse to allow Student’s ABA aide to accompany Student at school. At the IEP meeting, District’s administrative representative told Parent that the District would not honor the prescription or allow the ABA aide on campus with Student. As a result, Parent kept Student home from school so she could receive the weekly 40 hours of insurance funded ABA therapy.
DISCUSSION: Because children with disabilities and their parents are frequently not represented by counsel during the IEP process, procedural errors at that stage are likely to be prejudicial and result in lost educational benefits. Consequently, compliance with the IDEA’s procedural safeguards “… is essential to ensuring that every eligible child receives a FAPE, and those procedures which provide for meaningful parent participation are particularly important.” Amanda J. v. Clark Cty. Sch. Dist. (9th Cir. 2001) 267 F.3d 877, 891.) Procedural violations that interfere with parental participation in the IEP process undermine the essence of the IDEA. M.C. v. Antelope Valley Union High School District (9th Cir. March 27, 2017) ___ F.3d ___ (2017 WL 1131821 at p. 2).)
Here, in determining that the District had significantly interfered with the Parent’s right to participate in the IEP process by rejecting her request without an open and earnest discussion by the entire IEP team at a meeting, the hearing officer explained it would have been appropriate for the District IEP team members to do research about the ABA prescription and form opinions about Parent’s request before the IEP meeting. However, it was improper for the District to decide to reject the request before the IEP meeting.
In recent years, LEAs have seen an increase in requests from parents to allow an insurance-funded ABA aide accompany their child at school. These requests are likely the result of the passage of Senate Bill 946 in 2011 which required health insurance plans to provide coverage for behavioral health treatment for pervasive developmental disorder or autism. (Health & Safety Code § 1374.73 (a).) Notably, this section further provides that the requirement of health plans to include services for students with autism “shall not affect or reduce any obligation to provide services under an individualized education program…”
Allowing an outside provider who is neither an employee nor a contractor of an LEA requires careful consideration of multiple variables including, but not limited to, whether the student requires the service in order to receive FAPE at no cost to the parent, an LEA’s right to select an appropriate IEP service provider, prevention of disruption of the learning environment, and potential liability if the individual is injured while on campus. In order to ensure a parent’s right to participate in the development of their child’s IEP, these variables must be considered within the context of an IEP meeting. Also, whenever an LEA receives a “prescription” from a student’s physician ordering a child to receive a particular service, an LEA should attempt to obtain additional information from the physician by requesting parental permission to confer with the physician and/or to make arrangements for the physician to speak to the IEP team.
SB 1375: Requirement that a School District, Charter School, or Private School Publicize Their Responsibilities and Students' Rights under Title IX
Passed in September 2016, SB 1375 requires any public or private school, charter school, school district, or county office of education that is subject to federal Title IX requirements to publicly post to the school’s website by July 1, 2017:
- The school’s responsibilities under Title IX,
- Students’ rights under Title IX,
- Contact information for the entity’s Title IX Coordinator, and
- A description of how to file a complaint under Title IX.
Title IX of the Education Amendments Act of 1972 is a federal law that states:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Title IX applies all educational institutions that receive federal funds. Although Title IX is often thought of in terms of athletic opportunities, Title IX also impacts recruitment, admissions, and counseling; financial assistance; sex-based harassment; treatment of pregnant and parenting students; and discipline.
Each school (or school district) must designate at least one employee to coordinate their efforts to comply with and carry out their responsibilities under Title IX. This designated employee is referred to as the “Title IX Coordinator” and is responsible for coordinating the school’s or district’s responses to all complaints involving possible sex discrimination. This responsibility includes monitoring outcomes, identifying and addressing any patterns, and assessing effects on the campus climate.
In passing SB 1375, the State found that school districts were often unaware of their responsibilities and requirements under Title IX. As such, the law requires schools to publicly and prominently post their Title IX obligations to the school’s website by July 1, 2017.
SB 1375 Requirements:
As of July 1 2017, a school must post:
1. The name and contact information (including phone and email address) of their Title IX Coordinator;
2. Students’ rights and the School’s responsibilities under Title IX, including links to:
- The rights listed by Education Code § 221.8;
- The California Dept. of Ed’s Office for Equal Opportunity; and
- The U.S. Dept. of Ed’s Office of Civil Rights.
3. A description of how to file a complaint under Title IX, including:
- An explanation of the statute of limitations within which a complaint must be filed after an alleged incident of discrimination (ordinarily, within 180 days);
- An explanation of how a complaint will be investigated by the school/school district/county office of education, and how the individual may further pursue a complaint if unsatisfied with the outcome, including a link to The U.S. Dept. of Ed. Office of Civil Rights’ webpage on how to file a complaint; and
- Contact information to the U.S. Dept. of Ed Office of Civil Rights (phone and email address), and a link to OCR’s complaints form.
If a school does not maintain a website, it may comply with SB 1375 by posting the above information on the website of its school district or county office of education.
If you would like further assistance with complying with SB 1375, understanding your school’s obligations under Title IX, or creating the policies and procedures under which your Title IX Coordinator will operate, please contact us here at Girard, Edwards, Stevens & Tucker LLP.
On March 30, 2017, the 9th Circuit Court of Appeals ruled in an unpublished decision that a school district properly assessed a student with autism for dyslexia and dysgraphia through the use of reading and writing assessments. The court found that an assessment’s label is less significant than the skill levels the assessment is designed to evaluate.
Parents of a Washington student with autism sued their local school district for failing to evaluate their son for dyslexia and dysgraphia. Instead, the district assessed the student using reading and writing assessments which covered a number of disabilities, including specific learning disabilities.
The court found that the district’s broad assessments adequately covered the areas of suspected disability sought for assessment by the parents. The court noted that the district administered a “battery of tests,” many of which were also administered by the parents’ private evaluator. The parents were also unable to identify any additional tests which the district should have used.
Parents frequently ask school administrators if a school-given assessment evaluated their student for very specific disabilities. Describing how these assessments evaluate for potential learning disabilities to parents unfamiliar with these tests can be challenging. In this case, it appears that the parents may not have completely understood that the assessments given by the district did in fact evaluate their son for the disabilities suspected by the parents.
Faced with this issue, it is recommended that school administrators take special care to fully describe how each assessment is designed to test for certain disabilities. For example, explain to parents how certain “reading and writing assessments” are important tools in assessing for dyslexia and dysgraphia and the skills associated with those disabilities. School administrators and staff will also want to familiarize themselves with the Dyslexia Guidelines to be issued by the California Department of Education in August 2017 which are intended to assist schools and parents in identifying and assessing pupils with dyslexia (as required by Education Code section 56355).