UNTIMELY F.B.A.P.
RESULTED IN A DENIAL OF FAPE
A failure to conduct a proper and timely functional behavioral assessment and develop a behavior management plan resulted in denial of FAPE, a hearing officer ruled in South Pasadena Unified Sch Dist, 28 IDELR 1113 (SEA CA, 1998).
The student was a serious emotionally disturbed (SED) high school student. During his ninth grade year (1996-97), he had a series of behavior problems and suspensions for fighting and throwing a lit firecracker in the hallway. The IEP team met in December, found he was not meeting his academic or social/emotional goals and recommended placement in a segregated county facility for SED students and a referral for mental health counseling. The parent agreed to the counseling but rejected the county facility. The IEP team then agreed to continue the current placement and meet again. The IEP team met again in January and determined the county facility was the appropriate placement.
In February, following the firecracker incident, a manifestation review IEPC was held. The IEP team determined the misconduct was a manifestation of his disability, his current placement was inappropriate and the referral to the county facility was appropriate. A mental health assessment was also completed and concluded the student required mental health treatment.
In March, the IEP team met and recommended home instruction on an interim basis pending resolution of the referral to the county facility. The parent agreed. In April, the IEP team met again, reviewed the mental health assessment and recommended weekly outpatient psychotherapy and continued home instruction because the referral was still pending.
At registration for the next school year, the student was observed with a knife and suspended. A manifestation review IEP determined that the misconduct was a manifestation of his disability and his current placement was inappropriate. He remained on home instruction pending an annual review IEP.
The district then conducted a functional behavioral assessment. The applicable state administrative rule required the assessment to include systematic observation of the occurrence of the targeted behavior, the immediate antecedent events, and the consequences of the behavior. Because the student was not in a school setting, no observation was done. Instead, the assessment was based on discussions with the student, his parents and school staff and a review of psychological and discipline reports.
In October, an annual review IEP considered the functional behavioral assessment and developed a behavior intervention plan that the parents agreed to. The IEP also recommended placement at the segregated county SED facility. The parents rejected the placement and requested a due process hearing.
The hearing officer found that no functional behavioral assessment was done prior to the student being removed from the high school and placed on home instruction and that the assessment which was finally done was improper. The hearing officer thus concluded that the district's contention that the student could not function at the high school even with a behavior intervention plan was "purely speculative". The hearing officer ordered that the student be placed in a highly structured school setting during an extended school year and that a proper functional behavioral assessment be conducted and a behavioral intervention plan be developed by the end of the extended school year.
IMPLICATIONS:
The district appears to have early on concluded that the student should be placed in a segregated facility for SED students -- the most restrictive possible placement -- and then allowed that decision to drive its future conduct. Even after a manifestation review IEP found the misconduct to be a manifestation of his disability and his current placement inappropriate, the district did not conduct a functional behavioral assessment and develop a behavior intervention plan. Rather, it simply pursued its previously determined placement.
This case underscores the emphasis in IDEA-97 on appropriately and timely addressing behavioral issues. IDEA-97 addresses behavioral concerns in several critical steps of the IEP process: assessment (functional behavioral assessment or FBAP), "general" IEP development (i.e., consideration of special factors), discipline involving a change in placement, (behavior intervention plan review a/k/a BIP review or FBAP) and 45 day post expulsion IEP development (addressing misconduct leading to 45 day placement/expulsion so that it hopefully does not recur).
Unusual in this case was the existence of a state administrative rule specifically describing the components of the functional behavioral assessment. The rule required: systematic observation of the occurrence of the targeted behavior, of the immediate antecedent events, and of the consequences (to determine the function the behavior serves); analysis of the settings in which the behavior occurs most frequently; review of health and medical factors which may influence behaviors; and review of the history of the behavior, including effectiveness of previous interventions.
Since IDEA-97 does not specifically define functional behavioral assessment, its parameters will be shaped by professional literature and case law like South Pasadena. When addressing behavior issues, completion of a proper assessment is the prerequisite for development of a behavior intervention plan. Any plan or IEP not supported by a proper assessment will be vulnerable to attack. That attack is mostly likely to occur in a manifestation review IEP and may well result in a determination that the student cannot be long-term suspended or expelled.
Failure to Timely Assess Results in Compensatory Education
A district's failure to timely assess a student for special education eligibility justified an award of compensatory education, according to a local hearing officer (LHO) ruling in Independent Sch Dist No. 11, 28 IDELR 1144 (SEA Minn 1998).
The student was found eligible for special education in ninth grade due to an emotional/behavioral disorder (EBD), but the LHO found the district should have referred the student after his seventh grade year, as he was then exhibiting the same behavioral problems which now qualified him for special education.
In sixth grade, the student's performance was inconsistent, but not uncommon for students making the transition from elementary school to middle school. He successfully completed a summer school program to avoid being retained and was promoted to the seventh grade.
In seventh grade, the student failed to turn in work and was not exhibiting appropriate behavior. The teaching team discussed the potential existence of a learning disability or behavioral disorder, but decided against any referral, concluding that testing was inappropriate as it would give the student "more of an excuse" for failing to turn in work. He was absent 20% of the school year, but once again successfully completed summer school in order to enter eighth grade.
The eighth grade teaching team also decided against referral despite the student's difficulties, which included work refusals, lack of preparedness, uncooperativeness, and frequent absences. His teachers believed he was unwilling, rather than unable, to do the work. He failed all of his classes, but for various reasons was promoted to ninth grade.
In ninth grade, his attendance problems escalated. Truancy charges were filed and the juvenile court ordered the student to attend an alternative school and ordered an educational assessment. Meanwhile, the student's behavioral problems continued and his use of marijuana increased. Eventually, assessments were conducted, the student was found eligible for special education services and an interim IEP developed a program for him.
Although the district did not have reason to refer the child in sixth grade, the LHO held that it should have been apparent that the student's behavior warranted assessment by the end of his seventh grade year. "While poor grades alone do not indicate a need for assessment [citation omitted] poor grades and behavioral problems indicate a need for further assistance."
The teaching team's refusal to make a referral was viewed by the LHO as essentially a disciplinary measure. While the state rules specifically provided that identification as EBD is not to be used as a disciplinary device, the LHO observed that refusal to assess or identify should likewise not be used to discipline.
As relief, sixth months of compensatory education to be provided following the student's graduation was awarded. Although the lack of an appropriate program as a result of the failure to assess was not entirely to blame, as substance abuse was also a factor, the LHO found this award to be equitable.
Several additional matters were also addressed, including eligibility as a learning disabled student and the inclusion of gratuitous comments on the IEP. Although the student did show a significant discrepancy between ability and achievement in the area of written expression, it was impossible to verify that the underachievement was not primarily the result of an inconsistent education program caused by non-attendance. Under Minnesota law, an inconsistent education, which the LHO determined to include absenteeism, cannot be the primary cause of underachievement in deciding LD eligibility. In addition, the student did not have a history of deficits in the area of written expression. The LHO then found the student not eligible as LD.
Finally, the LHO noted that the Present Level of Performance section of the student's IEP contained some inaccurate statements and many comments not relating to the student's level of performance, perhaps due to the parents' absence from the IEPC. If the IEPC team, including the parents, could not agree on language, the LHO ordered that all information except that taken directly from the assessment report be removed.
IMPLICATIONS:
This case illustrates the danger in allowing a child to drift from year to year, grade to grade, without addressing ongoing behavioral and academic concerns. The student's progressively deteriorating behavior, increased absenteeism, failed classes, and repeated use of summer school to advance to the next grade were all red flags that the district ignored. In fact, an assessment was conducted only upon an order of the juvenile court.
Furthermore, the LHO clearly was concerned that assessments were withheld as a disciplinary tool. The student's teachers apparently believed that special education would only reward his bad behavior.
General education teachers need to be keenly aware of their child find responsibilities. The district was very fortunate that only six months of compensatory education was deemed appropriate.
In addition to resulting in compensatory education awards, patterns of behavioral and academic difficulties could be used by students not yet identified as eligible for special education as evidence that the district had knowledge that the child had a disability in order to invoke IDEA's procedural safeguards in disciplinary situations. See 20 USC 1415(k)(8).
IMPLEMENTING IDEA-97: REFERRAL TO LAW ENFORCEMENT
With the amendment of the Individuals with Disabilities Education Act in 1997, Congress codified a school district's discretion to contact law enforcement personnel when a student commits a misconduct which would also be a crime. 20 USC 1415(k)(9). School districts were permitted to report crimes to appropriate officials even prior to IDEA-97. However, reporting or referring a student to law enforcement or juvenile court does not relieve a district of its responsibilities to comply with the requirements of the IDEA. See, e.g., Flint Bd v Williams, 88 Mich App 8; 276 NW2d 499 (1979); Cris L. 25 IDELR 227 (6th Cir, 1997) [OP News Vol. 10, No. 6]. These cases make clear that a district cannot avoid its responsibility to provide a free and appropriate public education to students with disabilities merely by referring the students to juvenile court. How these varying obligations and responsibilities interplay, however, has been an area of confusion.
While continuing to permit districts to contact law enforcement personnel, IDEA-97 adds a requirement. When a school district chooses to contact law enforcement personnel regarding a student who has engaged in behavior that would constitute a crime, the district is required to "ensure" that copies of the student's special education and disciplinary records are forwarded to the authorities to whom the crime was reported. 20 USC 1415(k)(9)(B).
This provision formed the basis of a dispute between a parent and a school district in Texas, Northside Indep Sch Dist, 28 IDELR 1118 (SEA Tex, 1998). In that case, the student was engaged in a "confrontation" with a classmate after school on or near school property, in the bus area. School officials called the police and the student was detained in the local juvenile detention center. The student remained at the detention center (attending school within that facility) for about three weeks. During this time, the school district provided the parents with a copy of the student's records, but did not forward the records to the police or the juvenile facility. Following the student's release from the detention facility, the school district refused to permit the student to return to the high school until completion of an IEPC meeting. At that IEPC meeting, it was determined that a more restrictive placement was appropriate. The student then returned to the more restrictive program. Additionally, a manifestation determination review was held. The manifestation determination review concluded that the behavior was a manifestation of the student's disability, and therefore he was not expelled.
The parent requested a due process hearing, claiming that the school district denied the student FAPE by failing to transmit the student's records to the juvenile detention facility, thereby denying him special education while in detention. Additionally, the parents sought compensatory education for the delay between the student's release and his placement in the more restrictive setting. The school district argued that it could not release the student's records to the juvenile detention facility without consent of the parents, and that providing the records to the parent was sufficient to comply with its obligations under the IDEA.
The hearing officer found that the school district had violated the student's rights by failing to provide the school records to the appropriate authorities. Delivery of the records to the student's parents did not fulfill the district's obligation. Notwithstanding this procedural violation, the hearing officer found that the student was not entitled to compensatory education since he received services while at the detention facility, and a delay of five days in re-enrolling the student did not violate the student's rights. The hearing officer noted that a school district is able to suspend a student for up to ten school days. Since the five day delay did not exceed the ten school day limitation imposed by the IDEA, compensatory education was not appropriate.
IMPLICATIONS:
IDEA-97 imposes additional obligations upon the school district when it chooses to contact the police. Transmittal of copies of the student's educational records and disciplinary information to the law enforcement authorities is required by the statute. In this case, the hearing officer found that the requirements of IDEA-97 were irreconcilably conflicted with the requirements of FERPA. As such, the hearing officer found that the amendments to the IDEA created a statutory exception to FERPA, and that the school district would not be violating FERPA by transmitting the records to the appropriate police or juvenile authorities. The hearing officer also found that although consent was preferable, it was not required to be obtained from the parents in order to forward the records to the appropriate authorities. Specifically, the hearing officer stated:
...[T]he appropriate course of action for school officials to take after reporting a student offense to law enforcement authorities will be to attempt to contact the parent immediately and seek consent for the records released; absent consent, promptly notify the parent of the intended disclosure; and transmit copies of the student's discipline and current special education records to the appropriate authorities in the same manner as with other non-consensual disclosures. Northside, at 1122.
Although transmittal of the records is required, the district must also remember to follow the FERPA regulations and its own internal policies regarding disclosure of records without parental consent. The hearing officer found that providing the records to the parent did not fulfill the obligations of the school district, since the parent could not be expected to act as an agent of the school district in transmitting those records to the authorities.
With the heightened increased sensitivity to violence in schools, school districts may increasingly find themselves reporting student criminal activity to law enforcement authorities. A district is not required to comply with the procedural aspects of the IDEA (notice, manifestation determinations, etc.) prior to contacting law enforcement. However, contacting law enforcement authorities does not relieve the district of its obligations to follow the discipline procedures under IDEA-97. In implementing these procedures, it is important to remember that the time the student is out of school due to juvenile detention is not considered a suspension or school district exclusion in regard to the "ten day" count. (Northside, at 1121).