Cancelled Minnesota DAPE Swimming Program Results in Lawsuit

1. Cancelled Minnesota DAPE Swimming Program Results in Lawsuit National Consortium for Physical Education and Recreation for Individuals with Disabilities Conference July 19, 2008

2. State of Minnesota in Court of Appeals A06-1617 Independent School District No. 281, Robbinsdale, Minnesota, Relator vs. Minnesota Department of Education, Respondent Filed September 25, 2007 Minnesota Department of Education Complaint File No. 2257

3. Presenters Ruth J. Nearing, St. Cloud State University Sherry L. Folsom-Meek, Minnesota State University, Mankato

4. Major Issues District failed to provide written notice to parents before canceling DAPE swimming and before revising IEPs of some students District unilaterally cancelled DAPE swimming without considering unique special needs of each student District required one student to pay for DAPE swimming

5. Major Issues District failed to make a good-faith effort to assist 31/37 students to achieve IEP goals and objectives related to DAPE swimming

6. Minnesota Department of Education (MDE) MDE received 125 complaints statewide in previous 3 years 14 involved Robbinsdale School District found 46 violations One parent complained about DAPE swimming being cancelled (Browning, 2006)

7. Minnesota Department of Education Cont. MDE required Robbinsdale School District to: Provide compensatory DAPE swimming instruction to 31 students for instruction missed during the 2005-06 school year Provide DAPE swimming instruction during 2006-07 school year Notify parents of change in IEPs District did not comply so MDE took them to court

8. Background DAPE swimming for District students with disabilities part of district’s DAPE services for 13 years In latter 1980s, District assumed responsibility to provide DAPE services for students with severe-to-profound disabilities In mid-1990s, District began providing DAPE swimming at Courage Center in Golden Valley

9. Background Cont. Courage Center’s swimming facility designed specifically for individuals with disabilities Accessible with ramps and steps Life guards familiar with persons with disabilities Warm water and whirlpool During 2004-05 school year, District provided DAPE swimming to 33 senior high school students at District swimming pools or Courage Center.

10. Background Cont. DAPE swimming instructor certifications: MN DAPE and Physical Education K-12 Teaching Licenses WSI Adapted Aquatics DAPE swimming teacher, who is also a DAPE teacher, taught adapted aquatics as part of District’s DAPE program for 15 years. Before that, he taught DAPE swimming in another district for 18 years.

11. Background Cont. DAPE swimming instructor required assistance of staff and volunteers to deliver DAPE swimming services. The District provided swimming to students in the middle schools. Students who qualified for DAPE services in the middle schools could participate in swimming as part of general physical education or in a DAPE swimming class.

12. Background Cont. District incurred financial costs in offering DAPE swimming (staff time, transportation, pool rental), which are partially reimbursable by the state. Process to determine which students will participate in DAPE swimming: Eligible for DAPE services DAPE evaluator and one other team member need to agree with recommendation for DAPE swimming for a student Once recommended: initial screening in water using Red Cross Level 3 exit criteria.

13. Background Cont. Process to determine which students will participate in DAPE swimming: cont. If student has ASD or PI and swimming is necessary environment to work on fitness, ROM, and sensory needs, can continue in DAPE swimming even if pass Level 3 exit criteria. If student has PI or is unable to move in colder water due to resulting muscle rigidity in cold water, he or she should swim in a warm water pool, e.g., Courage Center.

14. Background Cont. Process to determine which students will participate in DAPE swimming: cont. A student with a disability receives swimming as part of middle school curriculum and continues into high school contingent on IEP team recommendation as well as the two criteria immediately preceding this criterion. Students with disabilities received DAPE swimming 12-17 times per year in two-three hour blocks of time, which included transportation, changing clothes, and instructional time.

15. District Concerns Students removed from regular class schedules for extended amounts of time for DAPE swimming. Some of DAPE in warm water (therapeutic) pool was purported to be instructional DAPE activity. They stated that therapeutic swimming not an activity mandated by special education (SPED) law. Some of student evaluation reports (ERs) did not contain sufficient, explicit, detailed information on how student’s disability affects motor abilities, movement skills and fitness, and success in general education program.

16. District Concerns Cont. Many of the students receiving DAPE swimming had moderate-to-profound cognitive disabilities and were provided swimming in separate classes. Did not want to provide swimming at high school level as swimming not part of high school physical education program.

17. District Consultant Findings High school general education (GE) curriculum did not include swimming Middle schools have pools and swimming units DAPE students with disabilities (DAPE S/D) removed from other classes for swimming Use of warm water = therapy Overuse of swimming as the “activity of choice”

18. District Consultant Findings (Cont.) DAPE swimming separate from GE swimming classes: “Preferred delivery service model” would be to have (DAPE S/D) participate with their peers without disabilities; regular PE teacher should be at IEP meeting (Complaint File #2257, July 28, 2006, p. 3). Problems identified in writing goals and objectives Questions raised about the how the disabilities of the learners affected their motor skills Eligibility for those swimming lacked objectivity

19. District Consultant Findings (Cont.) Community-based options: Swimming could be part of high school students’ IEPs as a transition goal in area of recreation and leisure or community-based participation. Notice forms in students IEP files not include information explaining why District removed IEP goals and objectives and minutes of DAPE service District commonly stated “Annual IEP revision” as the reason.

20. District Consultant Findings (Cont.) Some IEP files did not include DAPE swimming but did include goals and objectives for DAPE swimming.

21. District Consultant Suggestions Swimming should be held only at Middle Schools and not at high schools because: “. . . swimming is not a component of the high school physical education program. . .” (Complaint File #2257, July 28, 2006, p. 3). More objective decision-making steps need to be developed (e.g., formal, standardized, comprehensive assessment of movement skills, which could be supplemented by informal assessment).

22. District Consultant Suggestions Methods of determining who is and who is not eligible for Adapted Aquatics need to be solidified using both formal and informal assessments I CAN Test of Gross Motor Development

23. SPED Director Actions 3/15/05: Notified SPED teachers of Level-3 program, swimming for high school students would be eliminated; swimming would be only at middle schools 4/11/05: School Board Members given document “Adapted Aquatics – Talking Points.” 4/22/05: Letter to parents indicating: “. . .final decision has not been made about the future of DAPE swimming. . .” (Complaint File #2257, July 28, 2006, p. 4).

24. SPED Director Actions 9/19/05: Sent letter to parents indicating they completed their review of DAPE swimming and that parents would be invited to an IEP meeting to discuss changes. Fall IEP Meetings Parents told DAPE swimming was cancelled One parent told she would have to pay for swimming services

25. SPED Director Statements Did not need to provide prior written notification to parents to cancel because swimming “. . . is a methodology. . . ” (Complaint File #2257, July 28, 2006, p. 16). When asked if there would be any time a SPED high school student would be provided DAPE swimming, he stated: “. . . it would be very difficult to justify the provision of DAPE swimming to a District high school special education student” (Complaint File #2257, July 28, 2006, p. 16).

26. Court Investigations Each participating DAPE student’s IEPs were reviewed and included (N = 37): Disability category as well as participant number Evaluation reports including DAPE swimming Inclusion of DAPE swimming before District cancelled it If parents gave consent for a pre-removal IEP Whether IEPs were modified to remove DAPE swimming If District provided prior written notification before canceling DAPE swimming

27. Court Findings District did not give prior written notice to parents before: Revising student’s IPEs Canceling DAPE swimming District did not adhere to Free Appropriate Public Education District did not address “unique needs” of each student before canceling swimming

28. Court Findings Cont. District not make “good-faith effort” to adhere to goals and objectives on IEPs Notices to parents were not individualized Written information for one participant was not received within time frame given because of a wrong address on mailings District e-mailed information could not be read because not being able to open documents

29. Court Findings Cont. One student’s rights were violated when the January 2001 IEP did not include special education and related services because of her hearing impairment (DHH). Finally, “ . . . cost was over-riding factor used in this decision, and the unique needs of each Student and their rights to a FAPE were not considered in this policy determination” (Complaint File #2257, July 28, 2006, p. 25).

30. Court Findings Cont. Court stated that “methodology” is not found in federal or state statutes. DAPE swimming is unique type of DAPE and is not a methodology. Different methodologies can be used for swimming instruction. School districts must implement IEPs as written.

31. Court Findings Cont. District’s position on canceling DAPE swimming because they stated students with disabilities must always take part in regular physical education was a false premise (Complaint File #2257, July 28, 2006, p. 23). District’s policies, procedures, and programs must be consistent with federal regulations.

32. Court Findings Cont. District’s reason for canceling DAPE swimming was because they believed that DAPE must supplement and not supplant GPE program was found by the court to be invalid as there is no requirement in current federal or state SPED law that SPED programs must supplement rather than supplant. In addition, this does not refer to SPED programming.

33. Summary of Court Findings Every argument made by the District was knocked down. Blanket notices to parents were legally deficient. When District resisted state orders regarding adapted swimming, MDE Commissioner threatened to withhold more than $500,000 in state aid. (Browning, 2007)

34. Collateral Damage Parents/Guardians: Hassle and time spent with litigation DAPE High School Students: Perhaps will no longer have swimming made available to them DAPE Middle School Students: May be placed in an inappropriate GPE setting SPED Director: Lost job (he formerly was a DAPE teacher and on DAPE Leadership Committee)

35. Collateral Damage Cont. DAPE Teacher: No longer teaching DAPE swimming MN DAPE Teachers: Unwilling to say anything relative to inappropriate decisions made by administration on behalf of DAPE students DAPE students: Health, safety, and well being of those not being provided the opportunity to swim MDE: Staff could have been spent time doing other things

36. Minnesota Rules Cited Minnesota Rule 3525.3600 (Prior Written Notice) Minnesota Rule 3525.0300 (Free Appropriate Public Education) Minnesota Rule 3525.1352, subp. 2 (Definition of Developmental Adapted Physical Education [DAPE]) Minnesota Rule 3525.1352, subp. 2 (Criteria for Eligibility for DAPE) Minnesota Rule 3525.0210, subp. 8 (Definition of Conciliation Conference) Minnesota Rule 3525.3700, subp. 1 and 1a (Conciliation Conference)

37. Minnesota Statutes Cited Minnesota Statute § 125A.091, Subd. 3 (Content of Notice) Minnesota Statute § 125A.091, Subd. 4 (Understandable Notice) Minnesota Statute § 125A.08(a)(1) (School District Obligations) Minnesota Statute § 125A.05(a)(1) (School District Obligations)

38. Federal Statutes Cited Federal: 34 C.F. R. § 300.26 (a)1, (b)1, (b)2, (b)3 (Definition of Physical Education) Federal: 34 C.F. R. § 300.343 (c)(1) (Review of IEPs) Federal: 34 C.F. R. § 300.343 (c)(2)(ii) (Revisions of IEPs) Federal: 34 C.F. R. § 300.344 (c)(1) (IEP Team Composition) Federal: 34 C.F. R. § 300.350 (a)(1) (Public agency responsibilities to provide SPED services in accordance w/ IEP) Federal: 34 C.F. R. § 300.350 (a)(2) (Accountability for child’s achieving goals) Federal: 34 C.F. R. § 300.220 (a) ( Exception for prior local plans) Federal: 34 C.F. R. § 300.300 (a) (I) and (ii) (Informed consent)

39. References Browning, D. (2006, December 15). Robbinsdale schools at odds over special needs. Star Tribune. Retrieved May 17, 2008, from http://www.startribune.com Browning, D. (2007, September 26). Rights of Robbinsdale special-ed students were denied, Appeals Court rules. Star Tribune. Retrieved May 17, 2008, from http://www.startribune.com Complaint File #2257. (2006, July 28). Robbinsdale ISD #281. Independent School District No. 281 v. Minnesota Department of Education, No. 2257. Unpublished. http://lawlibrary.state.mn.us/archive/ctapun/0709/opa061617-0925.htm