An "Ounce of Prevention..." News
Information and Ideas from LaPointe & Associates for Practical Problem Solving in Special Education
REPUBLICAN CONGRESSIONAL LEADERSHIP REACTS TO PROPOSED IDEA-97 REGULATIONS
A California hearing officer recently ruled in one of the first cases contesting an
alternative educational setting under the IDEA-97 amendments. In William S. Hart Union
High Sch Dist, 26 IDELR 1258 (SEA CA, 1997), a high school student with a learning
disability was suspended pending expulsion for smoking marijuana during the lunch period.
The student had been in regular education classes except for one daily resource specialist
program class.
The student was suspended on September 12, 1997. An IEP meeting was convened on
September 22 and proposed an interim alternative placement of five hours a week of
home instruction. The district had not previously conducted a functional behavioral
assessment of the student or implemented a behavioral intervention plan. The IEP meeting
did not develop a functional behavioral assessment plan. The IEP team also did not review
the relationship between the student's disability and his behavior.
The parent refused to consent to the proposed interim alternative placement and
requested a due process hearing. On September 24, she filed a motion requesting the
hearing officer to determine that the "stay-put" placement was the high school
program. Also on September 24, the district withdrew its offer of home instruction,
resulting in no educational services being provided from September 12 until the
hearing on October 16.
The hearing officer concluded that the district had not provided an interim alternative
educational placement and had failed to comply with the requirements of IDEA-97 pertaining
to removal of a special education student from an educational placement for more than
10 days. The hearing officer ruled that the stay-put placement was the high school
program and ordered the district to immediately reinstate the student.
In a second case from Maine, Freeport Pub Sch, 26 IDELR 1251 (SEA ME, 1997), a
high school student with a behavior impairment was suspended for showing a knife during an
argument with another student on school property. The student had been in regular
education for all academic classes. His IEP did not provide for any behavioral services
but did address conflict resolution and behavioral intervention.
The student was suspended on September 8, 1997. An IEP meeting was convened on
September 15. The IEP team determined that his behavior was a manifestation of his
disability. It determined that he would receive a comprehensive psychological assessment
and access counseling to address behavior concerns. It ordered placement in an alternative
educational setting of 2 1/2 hours a day of tutoring services at the local
public library.
The parent appealed and contended that "stay put" was the regular education
high school program. The hearing officer found that the interim setting did enable the
student to continue to participate in the general curriculum but that it was deficient in
not providing services and modifications either to enable him to meet the goals set out in
his IEP or to address the behavior which led to his removal. The hearing officer also
criticized the IEP because it had not included a behavior plan to address the student's
episodes of anger and aggression.
The hearing officer nonetheless upheld the interim alternative educational setting but
ordered the IEP team to reconvene to incorporate into it services and modifications to
enable the student to meet the goals in his IEP and to address the behavior which led to
his removal.
IMPLICATIONS:
The California case is a textbook example of "how not to do it." The only
thing the district did right was convene the IEP meeting within 10 days of the
initial disciplinary action. If it had developed and implemented a 45-calendar day interim
alternative placement, then the stay put when the parent appealed the IAP would have been
the IAP, at least to the 45th calendar day of that placement. However, because the
district withdrew the IAP and still kept the student out of school what in effect happened
was a suspension in excess of 10 school days without a manifestation determination (and
preliminary to that a functional behavioral assessment plan as the student here did not
have a behavior intervention plan).
In contrast, in the Maine case both the district and the IEP team basically "got
it right." The IEP meeting was timely convened. The IEP team reviewed and modified
the behavior intervention plan and conducted a manifestation review. It determined an
interim alternative educational setting, albeit one the hearing officer found deficient.
The lesson to be drawn is that, if a district makes a good faith effort to comply with the procedural requirements of IDEA-97, a hearing officer or court may uphold an interim alternative placement and afford the district an opportunity to correct deficiencies in it. Procedural failures that compromise the required IEP team process, however, almost certainly will result in the alternative placement being overturned. Districts need to ensure that IEP meetings are timely convened and IEP team members clearly understand their responsibilities.
The U.S. Department of Education has issued "guidance" regarding the
inclusion of students with disabilities in state and district wide assessments of
students. In IDEA-97, Congress added specific statutory provisions addressing inclusion of
disabled students in assessments and IEP requirements regarding assessments. In issuing
their Joint Policy Memorandum on Assessments, 27 IDELR 138 (US DOE, 1997), however, the
Assistant Secretaries for Special Education and Rehabilitative Services (OSERS) and Civil
Rights (OCR) conclude that exclusion of students with disabilities from assessments
because of their disabilities violates not only IDEA-97 but section 504 of the
Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act (ADA) as
well.
The "guidance" links assessment to school accountability and recent
educational reform efforts. The memorandum concludes that, in the past, students with
disabilities have not participated in assessments "only to be short-changed by the
low expectations and less challenging curriculum that may result from exclusion."
Effective July 1, 1998, IEPs developed under IDEA must include a statement of any individual modifications in administration of state or district-wide assessments that are needed in order for the student with disabilities to participate in the assessments. The guidance suggests a number of possible modifications that IEP teams might consider, including oral administration, large print, Braille version, individual or separate room administration, extended time and multiple test sessions. If the IEP team determines that a student will not participate in an assessment (or
part of such assessment), the IEP must include a statement of why the assessment is not
appropriate and how the student will be assessed. (The guidance presumes that the number
of students excluded from regular assessments will be small, including students with
significant cognitive impairments.) Alternative assessments for students who cannot
participate must be developed and implemented by July 1, 2000.
Under the memorandum, these requirements apply to all students with disabilities,
including those who are not eligible for special education and related services under IDEA
and are covered only under section 504. If a student is eligible only under section 504
and then does not have an IEP, the matters must be addressed in the student's 504 plan.
IMPLICATIONS:
Although this document is "guidance" as opposed to regulation or law, it is
likely that hearing officers and courts will give substantial deference to this agency
interpretation. It can also be assumed that OCR will now assert jurisdiction to
investigate complaints of noncompliance with the new requirements regarding assessments.
Districts should review their policies on administration of state and district-wide assessments and, if necessary, revise them to require all disabled students to participate in assessments unless there has been an appropriate individualized determination that the student cannot participate even with accommodations. Districts should also ensure that section 504 plans address participation in assessments.
Return to the TOP
Six members of the Republican Congressional leadership, including Senate Majority
Leader Trent Lott and Senator James Jefford and Representative William Goodling, the
chairmen of the committees with oversight of IDEA, have sent a letter dated January 20,
1998 to Secretary of Education Richard Riley, commenting on the proposed IDEA-97
regulations. The letter expresses leadership concerns with both the overall package and
with a number of specific proposed regulations.
The members stress the importance of minimal regulation, given the specificity of the
statute, and criticize the frequent use of notes which they believe, in too many cases,
"go well beyond clarification creating a new interpretation that differs from the
statutory language." A second area of concern cited is that the Department of
Education is using the process to enact previously issued policy letters in matters which
IDEA-97 did not address. The members strongly suggest that the Department should publish
separate proposed regulations on each of these policy issues.
The members also comment on a lengthy list of specific proposed regulations. Some of
their more noteworthy comments include:
On discipline, they agree that removal of a child with a disability for not more than ten
school days without provision of educational services is not a change in placement. They
strongly object, however, to the proposed regulation which defines ten school days to be
"within a given school year" as being without statutory basis and state that the
long standing policy that a "pattern of suspensions" would constitute a change
of placement is the proper interpretation.
The proposed regulations limit the graduation exception to the provision of FAPE to
receipt of a regular high school diploma and a note states that since graduation is a
change in eligibility status, reevaluation is required. The members state that
"graduation" means that a student has met the necessary requirements through a
regular diploma or other certificate to leave high school and this terminates the
school's responsibility to provide FAPE. They describe the proposed regulation and note as
"a prime example of the Department...attempting to turn a policy letter into a
binding regulation" without any statutory basis.
Regarding the participation by the regular education teacher on the IEP team, the
members stress flexibility and strongly recommend that the regulations give a wide range
of examples of appropriate participation, clarifying that compliance with the requirement
is not limited to the teacher's physical presence at meetings.
A note following the regulation on continuum of alternative placements generally limits
home instruction to medically fragile children. While agreeing that use of home
instruction should be limited, the members observe that placement is an individualized
decision and suggest that restricting home instruction to one cluster of disabilities is
inappropriate. They state that IDEA-97 is deliberately silent on use of home instruction
in discipline situations and including the note undercuts the Congressional understanding.
The members oppose defining in the regulations a number of terms not defined in the
statute, especially "extended school year" and "general curriculum"
and the use of a note to add travel training, nutrition services and independent living to
the list of related services. They state that Congress expressly considered the scope of
related services and did not intend these items to be included.
IMPLICATIONS:
The Department of Education is now deciding how to proceed on the proposed regulations.
It can issue the regulations basically as proposed, significantly revise them, or develop
a revised set of proposed regulations and publish them for a new round of public comment.
This extraordinary letter from the Republican Congressional leadership is surprising in
both its bluntness and detail. At a minimum, it is likely to cause the Department to
seriously reconsider many of the proposed regulations. Whether it will lead to extensive
revisions remains to be seen.
Q & A
Q Where the parent of a student with disabilities gets upset with a
district regarding a special education or Section 504 matter, be it in an IEPC meeting or
otherwise, and removes the child from school but does not otherwise take steps to have
their child educated in accordance with the compulsory school attendance laws, can the
district pursue a truancy action?
A Yes, but with some precautionary steps. A recent OCR ruling in San
Saba (TX) Ind Sch Dist, 26 IDELR 1145 (OCR 1997), supports this position. In San
Saba, the parent had disagreements with the district concerning accessibility and
placement and removed her child from school. She filed an OCR complaint. After the child
was out of school for several months, the district notified the parent (and OCR) of its
intent to pursue truancy procedures. OCR facilitated a dialogue between the parties but
without success. Thereafter, the child returned to school intermittently and again the
district notified the parent of its intent to proceed with a truancy action. It attempted
to reach resolution with the parent concerning the attendance problems but again without
success and thereafter filed truancy charges. OCR found the district acted upon a
legitimate nondiscriminatory basis in taking the truancy action. In doing so, it noted the
district's prior attempts to resolve the matter through other means.
While under IDEA and Section 504, the parent disputing a district's IEP has a right to
remove their child from school and request a hearing to challenge the IEP as well as
possibly seek reimbursement for educating the child privately, the parent is not excused
from meeting the requirements of the compulsory school attendance laws. In other words,
the parent must basically either enroll the child in a private school or home school the
child through meeting the minimal requirements of state law, most notably those of the
Michigan Department of Education.
Regrettably, this problem seems to be arising with greater frequency. In addition to the strategy utilized by the district in the above ruling (i.e., notifying the parent of the district's intent to invoke the truancy procedure, as well as OCR) and attempting to resolve the problem through discussions with the parent, we would offer one other cautionary note. Before invoking truancy proceedings with any student with disabilities, be sure to check on whether the attendance problems may in any way be related to a disability of the student. In this regard, the check should go further than just looking .
Return to the TOP
Return to the OP NEWS INDEX