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Information and Ideas for Practical Problem Solving in Special Education
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Inside this issue:
Failure to Fully Implement IEP Does Not Necessarily Deny FAPE, 5th Circuit Rules
FBAs: Emphasizing Function Over Form
Attorney General Rules on Validity of Inter-ISD Schools of Choice Requirement
A student received FAPE when the school district provided substantial portions of his IEP and he made educational progress, even though the district failed to provide some of the services in his IEP, the Fifth Circuit ruled in Houston Independent School District v. Bobby R., 31 IDELR 185 (5th Cir., 2000).
The student was learning disabled. His 1994-95 IEP provided for speech therapy and a resource room for reading and oral and written language skills. The school's speech therapist left in January and was not replaced for four months. The student did not receive any therapy during this period. The district did, however, provide 25 hours of compensatory speech therapy during the summer.
For the 1995-96 school year, the parents sought placement in a school that could provide an "Alphabetic Phonics" (AP) program. The district could not provide such a placement but agreed to provide an itinerant AP teacher at his school until a permanent teacher could be found. The IEP apparently also provided for several instructional modifications. The student received the AP program throughout the school year. His parents complained, however, that he was not receiving all of the modifications included in the IEP.
The IEP for the 1996-97 school year continued the AP instruction. The district still did not have a trained AP teacher at his school and began a new search. The IEP also included seven modifications: modified tests, taped tests and assignments, highlighted texts, extended time for assignments, shortened assignments and calculator use. Because the district did not have an AP teacher, the student did not receive AP training for the first two months. The parents refused compensatory services.
The parents then requested a due process hearing. The hearing officer found that the district failed to consistently or appropriately implement an AP program, IEP modifications or speech therapy and these failures constituted a denial of FAPE. The parents and district were unable to agree on an IEP for 1997-98. The parents then sought private compensatory services for the summer of 1997 and placed the student in a private school for the 1997-98 school year.
The school district then filed suit to contest the hearing decision. The federal district court granted summary judgment to the school district, reversing the hearing officer and finding that the student had received FAPE because he had shown improvement in most areas and therefore received educational benefit. The court also denied reimbursement for the private services.
On appeal, the parents did not raise any procedural violation of IDEA. Thus, the Fifth Circuit stated the issue to be whether the IEP satisfied the second prong of the Rowley test: whether it was reasonably calculated to enable the child to receive educational benefits. The Fifth Circuit used four factors to answer this inquiry: (1) whether the program is individualized based on the student's assessment and performance; (2) whether the program is in the LRE; (3) whether services are provided in a coordinated and collaborative manner by the key "stakeholders;" and (4) whether positive academic and nonacademic benefits are demonstrated.
It was not disputed that the IEP was individualized and provided in the LRE. On the third factor, the court found a failure to provide speech therapy and AP services as well as some of the modifications in the IEP but concluded that the compensatory services offered were a sufficient remedy. The court primarily relied on an OSEP statement formerly appearing in Appendix C of the IDEA regulations that so long as there was no change in the overall amount of service, some adjustments in scheduling were possible without convening another IEP meeting. The court concluded that FAPE is provided if significant provisions of the IEP are implemented and the student receives educational benefit. The court held that "a de minimus failure to implement all elements of the IEP" does not state an IDEA claim.
On the fourth factor, the court found the student had in fact received educational benefit from his IEP in most areas. Having thus concluded that the district provided FAPE, the parents' claim for reimbursement was also denied.
Implications:
This is the latest in a series of recent appellate decisions in which the courts have "cut to the chase" and looked to whether the IEP was substantially implemented and the student received meaningful educational benefit. If the answer is yes, the courts have found that FAPE was provided and denied compensatory education or reimbursement.
Clearly, the best practice is to fully implement the IEP. Situations do arise, however, that sometimes make full implementation impossible. There may be an unanticipated lengthy staff absence because of illness or the district may be unable to fill a position. When these situations occur, the IEPT should reconvene and develop an alternative means of addressing the need. In this case, the district used itinerant staff when it was unable to hire a permanent teacher. Compensatory education should be offered for services missed due to staff absence. It is very important that the district be able to document that FAPE was provided/offered through alternative means.
The case also illustrates the problem with agreeing to a specific methodology. When the district agreed to provide an AP program, it tied its hands. A better approach would have been to preserve use of the methodology as a district prerogative but obtain training in the AP program for its existing staff. That way the methodology would be available should staff in their professional discretion deem it an appropriate means of achieving success on goals and objectives.
Return to the TOPFBAs: Emphasizing Function Over Form
Function not form. That, according to University of Arizona Professor John Umbreit, PhD, is the key to developing effective behavior interventions. Speaking at the LRP School Attorney Conference in Phoenix, Arizona, earlier this month, Dr. Umbreit shared with school attorneys his thoughts on the use of Functional Behavioral Assessments (FBAs) and Behavior Intervention Plans (BIPs).
The fundamental purpose of an FBA is to understand why behavior is occurring so that an appropriate intervention based on the function of that behavior can be developed. Historically, behavior intervention plans have focused on the form of the behavior (e.g., swearing) rather than its function (e.g., to get attention) explained Dr. Umbreit. This approach resulted in interventions involving negative consequences for misbehavior and reinforcements for appropriate behavior. Research found, however, that while these types of form based interventions worked well in the short term, they rarely had any long term effect and did not generalize well across different situations. Over the past ten to fifteen years research has begun to focus on the functional approach to behavior intervention. Interventions based on the function of the behavior try to avoid the use of negative consequences, recognize the legitimacy of the behavior (e.g., getting attention) and focus on teaching more appropriate ways to achieve the goal (i.e., replacement behaviors). As an illustration, Dr. Umbreit used the example of a student who hits and kicks other students for attention. A form based intervention might include the use of time outs or reprimands whenever the misbehavior occurred and tokens or praise for appropriate behavior. In contrast, a function-based intervention would focus on the reasons why the student hits or kicks. If the FBA indicated that the child hits and kicks to gain attention from peers, the intervention would focus on teaching the child more appropriate ways of gaining a person's attention.
According to Dr. Umbreit, an FBA should include 1) a behavioral definition, 2) baseline data, 3) antecedent-behavior-consequence (ABC) data, and 4) structured interviews. The behavior definition should accurately identify the behavior that is the concern. Baseline data involves a measure of the strength of the problem behavior. This may include identifying the frequency, rate, duration and/or intensity of the behavior. ABC data is collected to identify the conditions under which the behavior occurs and the consequences the behavior produces. Finally, a good FBA should include interviews with teacher, staff, parents and/or the student. The interview should attempt to identify the nature of the behavior, when and how often the behavior occurs, how long the behavior has been occurring and the interventions used prior to the assessment. When conducting FBA interviews, the student interview can be an important part of the process. According to Dr. Umbreit, the student often can provide critical information for the assessment. To emphasize this point, Dr. Umbreit shared the story of a young blind woman who was placed at a state school for the blind. The young woman had a tendency to be overly affectionate and had become known as "the hugger" around school. While this behavior was "cute" when she was younger, staff became increasingly concerned about the appropriateness of the behavior as she got older. Staff tried various interventions without success. Finally, in the course of conducting an FBA, someone asked the young woman why she hugged people and the student replied that she hugged because she was cold. Accordingly, the successful intervention in this student's case was to give the student a sweater.
Dr. Umbreit recommended conducting an FBA in two situations: 1) If the student's behavior interferes with learning, disrupts the classroom or presents a danger to the student or others, or 2) if the student's behavior qualifies for a long term suspension or expulsion. "Ideally, the FBA should be conducted before a major problem develops," stated Umbreit.
It is also critical to ensure that the right person is conducting an FBA. In many schools, the responsibility of conducting an FBA falls on the classroom teacher but according to Dr. Umbreit, the classroom teacher might not be the right person for the job. While the classroom teacher should be involved in the FBA process, Dr. Umbreit suggests that the process would be better served if a school behavioral specialist, school psychologist, or outside consultant conducts the FBA. Unlike the classroom teacher, these individuals are likely to be more objective in their assessment because they do not have a longstanding history with the student. By utilizing someone other than the classroom teacher, you also free up the teacher to carry out the normal classroom activities that may trigger the targeted behavior so that the person responsible for conducting the FBA can observe and collect the relevant data. In any event, it is important that the person conducting the FBA have a good understanding of behavioral analysis, the FBA process, have access to the necessary people and environments, as well as the time to conduct the FBA.
If the FBA suggests that a behavior plan is appropriate for a student, Dr. Umbreit recommends that the behavior plan contain the following: 1) A definition of the problem behavior and the desired replacement behavior; 2) baseline data on the behavior's strength prior to the intervention; 3) the function of the behavior; 4) interventions and reinforcers to be used to improve the behavior and to strengthen appropriate behavior; 5) the data to be collected to evaluate the student's progress once the intervention is implemented and the date the plan's effectiveness will be reviewed; 6) the personnel that will be involved in the intervention and their roles; and 7) emergency procedures that may be used to regain control if necessary.
Finally, Dr. Umbreit cautioned that there are limitations with any functional behavioral assessment. First, the FBA may determine that the behavior is not repetitive in nature and therefore a behavior intervention plan is not appropriate. Similarly, an FBA may determine that there are variables over which the school has little or no control (e.g., medication issues or outside influences that impact in-school behavior). Optimally, the FBA will help clarify what should be done and whether or not the school can do anything about it.
Carr, E. G. (1977). The motivation of self-injurious behavior--A review of some hypotheses. Psychological Bulletin, 64, 600-616.
Foster-Johnson, L, & Dunlap, G. (1993). Using functional assessment to develop effective, individualized interventions for challenging behaviors. Teaching Exceptional Children, 25, 44-50.
Fox, K., Conroy, M., & Heckaman, K. (1998). Research issues in functional assessment of the challenging behaviors of students with emotional and behavioral disorders. Behavioral Disorders, 24, 26-33.
Lane, K. L., Umbreit, J., & Beebe, M. (1999). A review of functional assessment with students with or at-risk for emotional and behavioral disorders: 1990-present. Journal of Positive Behavior Interventions, 1, 101-111.
Return to the TOPIn section 105c(17) of the State School Aid Act, the Legislature has required that, before a child with a disability can participate in an inter-ISD school of choice program, the enrolling district must have a written agreement with the resident district regarding provision of FAPE to the student that includes an agreement on who is responsible for the costs. The Attorney General has recently issued Opinion No. 7046 on the validity of this requirement.
In the Opinion, the Attorney General determined that the inter-ISD schools of choice provisions did not violate the constitution of either the United States or of Michigan. The Attorney General determined that Section 105c(17) serves a legitimate governmental purpose and that the legislation was rationally related to that purpose even though it requires an enrolling school district and the resident school district to enter into an agreement regarding the cost of special education. The Opinion further found that the schools of choice provision did not violate the IDEA since a student was not denied a right to a free appropriate public education. Instead, Section 105c(17) only required agreement on allocation of the cost of providing that education. Lastly, the Opinion determined that the schools of choice provision did not violate Section 504 of the Rehabilitation Act of 1973, opining that compliance with IDEA constitutes compliance with Section 504.
Return to the TOPQ: Does section 504 require the same procedures as the IDEA when disciplining a "student with a disability"?
A. No. Some of the requirements are similar, however. Section 504, unlike the IDEA, does not set forth specific disciplinary procedures in either its statutory language or regulations. However, the Office of Civil Rights (OCR) has stated that a school district must take steps to determine that the behavior subject to discipline is not a manifestation of the disability prior to taking disciplinary action. Similar to IDEA, a district would therefore be required to convene a manifestation determination review meeting to examine the relationship between the behavior and the student's disability. This review would require examination of the student's Section 504 Plan, as well as a determination that the disability did not impair the student's ability to understand the nature or consequence of the behavior, and that the disability did not impair the student's ability to control his behavior. If the answers to these questions show that the behavior is not a manifestation of the disability, the student may be disciplined in the same manner as a non-disabled student. Conversely, if the behavior is a manifestation of the disability, disciplinary action may not be taken. Section 504 does not require districts to take any action for suspension days past 10 cumulative but not yet a "pattern of exclusion," does not address 45 calendar day interim alternative placements, and does not require post-expulsion FAPE.
Return to the TOPMichigan Court of Appeals Rejects Claim Against District for
Sexual Assault on Student by Another Student
A male first grade general education student was allegedly sexually molested between ten and twenty times by an older female student at the end of the school day in a secluded, unlocked bathroom. The parent sued the principal and the boy's teacher, claiming they were grossly negligent because they knew the boy had been the target of two physical assaults by other students, they failed to supervise him as he traveled to the parking lot at the end of the day to meet his mother, and they failed to lock or supervise the secluded bathroom.
School employees have governmental immunity from claims based on the performance of their duties unless they are "grossly negligent" which is defined as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury occurs." In this case, the court found that the defendants took steps to prevent the prior physical assaults from recurring. The court rejected an assertion that the principal's advising the student "not to tell his parents every time a student touched him" was an attempt to silence him, finding the statement instead to be "life advice" well within the scope of his role. The court further found the defendants had no reason to believe any student would be subjected to sexual assaults by another student in the secluded bathroom. Accordingly, the court held that no facts suggested a reckless disregard for whether students were injured and affirmed a dismissal of the case.
Implications:
The requirement that a plaintiff show "gross negligence" is a high hurdle. In this case, the school had dealt with prior physical assaults and there was no showing that staff was aware of the sexual assaults. The best protection for both staff and the district is to act promptly when learning of instances of assault or harassment to prevent their recurrence and to administer appropriate discipline to the perpetrator.