July 1999 ~ Volume 12, Issue 11

Ounce of Prevention News

Information and Ideas for Practical Problem Solving in Special Education

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In this issue:

Hearing Officer Orders Interim Placement for 8-Year Old Dangerous Student.............1

District Entitled to Choose Service Provider Unless Denial fo FAPE Would Occur......1

Dyslexia Not Required Descriptor in IEP........................................................................4

Hearing Officer Orders Interim Placement for 8-Year-Old Dangerous Student

A hearing officer determined that an eight-year-old student was substantially likely to injure himself or others if he remained in his general education "stay-put" placement, and therefore permitted an interim placement during the course of the due process proceedings. Community Consolidated Sch. Dist., 30 IDELR 448 (SEA IL 1999).

"JG" was an eight-year-old student in a general education1st/2nd grade classroom and received special education services for less than 50% of the school day within the classroom. JG also received speech and language services, social work services, occupational therapy, adaptive physical education, and music therapy.

Beginning with the 1996-1997 school year, the district staff observed outbursts of frustration, confusion, and anger. In response, the district implemented a behavior management plan (BMP). According to the district's records, JG's aggressive behaviors increased in frequency and severity during the 1998-99 school year. Teachers recorded incidents in which JG hit, scratched, pinched, kicked, bit, head-butted and spit on students and staff. JG threw classroom objects such as garbage cans, pencils, boxes, games, and crayons. In addition, he would often run out the classroom, out of the school building and into the parking lot, at times climbing on cars. On two occasions, he cut his assistant with scissors, and he cut his teacher's face with a "sun catcher" hanging in the classroom window.

On January 21, 1999, the district conducted a functional behavioral analysis and updated the BMP. The functional analysis concluded that the current general education placement was unsafe for JG, students and staff. An IEPT meeting was convened that same day, and the IEPT determined that JG should be placed in the district's autistic program, with opportunities for participation in the general education program. The IEPT meeting was adjourned to allow the parents an opportunity to observe the autistic program. The IEPT re-convened on February 8, 1999, at which time the parents expressed their disagreement with the proposed placement. A due process hearing was subsequently requested on February 11, 1999. After the parents requested the due process hearing, the district filed a motion with the hearing officer seeking permission to place JG in the proposed autistic program as an interim placement, pending the resolution of the due process hearing.

JG's teachers had compiled data on the number of incidents per day that JG hit, kissed, touched, pushed, grabbed, spit, kicked, threw objects, pinched, scratched, cut, bit, slapped, and head-butted. In addition, the teachers were able to identify the target of JG's behaviors (students, program assistant, inclusion facilitator, other staff). The district also kept track of "non-directed" behaviors, such as running out of the room, tearing up posters and objects, and pulling fire alarms.

According to the compiled data, JG exhibited an average of one inappropriate incident directed toward another student every other day, and an average of two inappropriate incidents were directed toward all staff every day. The hearing officer also noted that while JG had not exhibited self-abusive behavior, running out of the building and into the parking lot could put him at a risk for injury and harm.

The hearing officer stated that only in "extreme situations" could a student be removed from his or her "stay put" placement. The hearing officer cited to the IDEA-97 regulations (34 CFR 300.521) and to the Supreme Court's decision in Honig v Doe, EHLR 559:231 (1988) as establishing the criteria for a hearing officer's authority to order an alternative interim placement when maintaining the student's current placement "is substantially likely to result in injury to the child or to others."

In addition, the hearing officer cited two cases in which a student's stay-put placement was altered by the court or hearing officer. In Binghamton City Sch. Dist. v Borgna, 17 EHLR 677 (N.D.N.Y. 1991), the student grabbed the papers of another student, punched a student without provocation, struck a student with a pencil, tore up papers, threw shoes, chalk, crayons, chalkboard erasers and other objects at students and staff, yelled and banged on the classroom door, grabbed, hit, kicked, and spit on staff, and climbed on desks over a two month period. The court determined that it was clear that maintaining the child's placement was substantially likely to result in injury to the student, other students and the staff.

Likewise, in Hempfield Sch. Dist., 27 IDELR 406 (SEA 1997), a second grade student pushed other students to the ground, attempted to crawl over a bathroom stall, ran out of the classroom and down the hallway, attempted to strike a teacher with scissors, and attempted to kick the cane out from under a student with spina bifida. The review panel stated that IDEA-97 "does not define the term 'injury' to mean only serious injuries." Thus, the panel refused to minimize the school district's evidence simply because the nature of the injury was not serious. Because injuries had happened or almost happened as a result of the student's aggressive behavior ,the review panel held that there was substantial evidence that the student or others would be injured if the student's stay put placement was maintained.

In the present case, the hearing officer determined that JG had exhibited similar behaviors, which had already resulted in injury to the program assistant and to the music teacher. Other students and staff had been hit, kicked, pushed, scratched, pinched, head-butted, spat on, and struck with objects. Besides these aggressive acts, numerous "near misses" had occurred, in addition to bolting into the parking lot which put him at risk of injury. This aggressive and harmful behavior occurred toward classmates on an every other day basis and toward the staff on a twice a day basis. According to teacher notes, JG's behaviors had increased in frequency and severity.

Furthermore, JG's aggressive behaviors had continued despite numerous behavior management strategies. Staff had attempted verbal reprimands, verbal and physical redirection, removal of reinforcers, physical restraint when necessary, and timeout. JG had been placed in closer proximity to the teacher, given more breaks, had been redirected from the activity when becoming frustrated, permitted to change activities, and given adapted or modified material. The district tried sensory integration, instruction in alternative modes, alternative reinforcers, picture cues of expected behaviors, peer modeling, and the implementation of a behavior management plan. Unfortunately, none of these strategies had successfully controlled or decreased JG's aggressive and harmful behavior.

Therefore, the hearing officer ruled that there was substantial evidence that maintaining JG in the general education 1st/2nd grade classroom was substantially likely to result in injury to JG, to the other students, and to the staff. The hearing officer ordered that JG's interim placement be the self-contained autistic program pending the outcome of the due process hearing.

Implications:

This case is illustrative for several reasons. First, OSEP and several court and hearing officer decisions have held that Honig v Doe remains a binding precedent and a viable option for school districts post IDEA-97. Therefore, school districts have the option of going into court for injunctive relief or going before a hearing officer (as this case illustrates) for a ruling on an interim placement pending the due process hearing proceedings.

Regardless of the route a district may decide to take, it is absolutely vital that the district be able to support its contentions of "dangerousness" with hard data. Note the daily, detailed data collection the School District was able to present in this case. The hearing officer was able to get a clear picture of the nature and frequency of the student's behaviors, including the type of behavior and whom it was directed toward.

Similarly, the hearing officer was impressed with the many strategies the district had utilized in an attempt to address the student's needs. Not only is this important for general LRE considerations, but it becomes a central issue when considering the interim placement the district is seeking. A district will have a hard sell if it requests a self-contained interim placement, yet has failed to address less restrictive strategies.

This case is also notable given the age of the "dangerous" student. While it is more difficult to convince a hearing officer or court that a young student is a danger to staff and other students, it is clearly not impossible. In such circumstances, it is vital to provide hard data to the court or hearing officer, in order to present a clear picture of the dangerous situation. Finally, districts should be cognizant that while an alteration of stay-put is an option, the standard set forth by the IDEA and resulting caselaw is not easy to satisfy, particularly when a district is attempting to convince a hearing officer or a court that a young student is a danger to him/herself or others.

DISTRICT ENTITLED TO CHOOSE SERVICE PROVIDER UNLESS DENIAL OF FAPE WOULD OCCUR

When a parent failed to show that the services of a specific nursing agency were necessary to provide the student FAPE, the hearing officer ruled that the district was entitled to replace the nursing care provider with a district employee in Independent School District, No. 728, 30 IDELR 467 (SEA MN 1999).

The child was a medically fragile elementary student who had been diagnosed with cerebral palsy, mental retardation, seizure disorder, spastic quadriplegia, developmental delay, gastroesophageal reflux, airway obstruction/sleep apnea, as well as legal blindness. The student was nonverbal and dependent upon others for all care, including care at school by a licensed practical nurse. He required constant monitoring, tube feeding, medication administration and care in all areas of daily living.

Prior to transferring to Independent School District, the student was receiving services in accordance with an IEP and an individualized health plan (IHP) which included the services of a private duty nurse. When the student transferred to Independent School District in the fall of 1997, he was accompanied by a private duty nurse from an agency that had provided services to the student in the home and at the previous school. Subsequently, in March 1998, the student's IEP and IHP were revised and the IHP was incorporated into the IEP. That IHP noted that the provider of the nursing services for the student would be a nursing care agency owned and operated by the student's parent. This agency had been licensed to provide nursing care services for less than two months and provided nursing services to only one recipient, the student.

From March 1998, until August 1998, the district experienced numerous problems with the nurses provided by the nursing care agency, including but not limited to, communication difficulties, personality conflicts, difficulties with task completion, breach of confidentiality, unprofessional conduct, personal phone calls, and violations of building policies.

In August 1998, the district notified the parent of its intent to terminate the use of the agency and to use its own personnel to provide nursing services to the student. The district hired an individual to be the student's educational assistant and to perform nursing tasks effective at the beginning of the school year. The student attended school for one day at the commencement of the school year. The parents then requested a due process hearing. The student did not return to school until October 5, 1998, when a hearing officer issued a stay-put ruling requiring the provision of nursing services by the agency nurses. Subsequently, a mediation agreement was reached between the parties under which the district agreed to continue utilizing the nursing care agency to provide nursing services to the student. However, in the event the district concluded that agency nurses were not following the IHP or district policy and procedures, the district was required to notify the parent of its concerns and the parent was given three school days to take corrective action. The terms of the mediation agreement were then incorporated into the IEP.

The district continued to have problems with the nurses from the agency. On each occasion, the district followed the protocol provided in the mediation agreement and notified the parent of the alleged violations. The parent corrected some but not all of the alleged violations. In addition, the educational assistant attempted to document any and all instances of violations of the IHP and/or mediation agreement.

Approximately three months after entering into the mediation agreement, the district again notified the parents of its intent to change service providers for nursing services for the student and outlined for the parent the various violations that had occurred over the months. An interdisciplinary team meeting was held to discuss the change in service provider, however, the parent refused to consent to the change and requested a conciliation conference. The conciliation conference was unsuccessful. The district subsequently notified the parent of additional concerns and/or violations of the IHP and mediation agreement. The parent finally requested a due process hearing on February 5, 1999 and also requested that "stay-put" include the provision of nursing services by the current service provider (the parent's agency). Over the district's objections, the hearing officer ordered that stay-put include the current nursing care provider as set forth in the mediation agreement.

A four day hearing was held in March of 1999. At the conclusion of that hearing, the district argued in its post hearing brief that the hearing officer did not have jurisdiction to hear the matter because the main issue of the case was whether the district had a right under the mediation agreement to terminate the services of the nursing care provider, essentially a breach of contract claim. The hearing officer rejected the district's claim because the parties had incorporated the mediation agreement into the student's IEP, thereby affording the parent due process rights. To conclude otherwise, according to the hearing officer, would make a "mockery of the mediation process" which is an "integral part of the implementation of policy considerations underlying the IDEA".

The hearing officer also noted that the parties had been unable to cooperate to meet the student's needs and there was a great deal of distrust among the parties. This was due in part to the fact that 1) the district attempted to document each and every violation no matter how minor, 2) the nurses did not always carry out their responsibilities, 3) the nurses were not knowledgeable about district policy and procedure, and 4) the nurses were not part of the student's interdisciplinary team.

In addressing the merits of the dispute, the hearing officer reviewed the alleged violations of the IHP and mediation agreement, whether the district followed the protocol required under the mediation agreement, and the parent's response to each of the alleged violations. The hearing officer concluded that the district had followed the mediation protocol and that the parent failed to correct several problems, including failing to administer medication as prescribed, leaving the student unattended, and failing to complete other duties as required by the student's IHP. Accordingly, since the parent failed to demonstrate that the agency nurses were necessary to provide the student FAPE, the district could proceed to replace the current nursing care provider with a nurse of its choice.

Implications:

This is another instance where fact is stranger than fiction. While it is highly unusual for a district to enter into a contractual relationship with an agency owned and operated by a parent for the sole purpose of providing the parent' s child services, a number of lessons can be learned from this case. First, districts should avoid naming service providers in an IEP. This gives school districts the flexibility to change service providers as necessary and appropriate. Second, when contracting with third party service providers, don't leave these individuals out of the loop.

The contracted service providers need to know as much about a student as any district employee providing services. They should have access to the student's IEP, understand their responsibilities under that IEP and the district's expectations. They should also be made aware of any applicable district policies or procedures. Most importantly, communicate with these individuals so they feel like they are a part of the team.

Lastly, when parties enter into mediation agreements, they may want to consider adding a provision which provides for a dispute resolution mechanism other than a costly due process hearing.