Choose Your Own Adventure: Trouble on Special Education Island

1. Choose Your Own Adventure: Trouble on Special Education Island GCASE Spring 2019 Harben, Hartley & Hawkins, LLP Phillip L. Hartley Beth F. Morris Reagan G. Sauls

2. Pathways to Your Adventure POLL Participation

3. Chapter 1 The IEP Team gathers to consider special education eligibility for a student.  The Team reviews the District’s psychological evaluation, the parent’s private psychological evaluation, a functional behavior assessment, the student’s disciplinary history, and the student’s functioning in class.  In the Team’s discussions, it struggles with the student’s behaviors.  The parent contends that the behaviors are related to a lack of social skills and sensory integration issues, symptomatic of the autism diagnosis presented by the private psychological evaluation.  Teachers report that the student can be quite social, interactive with other students, and engaged while, at other times, he is withdrawn and explosive.  They do not believe that these behaviors are related to sensory issues.  And while they believe that social skills instruction would benefit the student, they believe the student’s behaviors are more emotional in nature as set out in the District’s psychological evaluation and the FBA which identified task avoidance as a function of the student’s behavior.

4. What do you do? There is lengthy discussion by the team. You try to reiterate that eligibility does not drive placement, but everyone's’ patience is wearing thin as it appears that there is a great deal of conflict between choosing Autism or Emotional Behavior Disorder as the eligibility category.  What’s more, it is getting late, multiple teachers need to leave to pick up their children, no one has eaten and you are ready to throw in the towel. You’re not sure it really matters anymore, but the school principal appears to feel otherwise and Mom definitely feels otherwise.  You just want to be out of your misery and this meeting.  You try to summarize what the team has discussed when Mom gets up, states that she disagrees and that she will refuse to consent to placement or to the development of an IEP. She is adamant that she will only agree to an autism eligibility determination. Some team members feel uncertain about committing one way or another. The parent wants to know if her opinion even matters anymore, various teachers keep asking if they can leave and the principal keeps giving you a death stare.

7. IDEA requires parental consent for district actions in conjunction with: (1) Preplacement evaluations and reevaluations and (2) Initial placements. • If the district tries but fails to obtain parental consent, it "will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with the special education and related services for which the parent refuses or fails to provide consent." 34 CFR 300.300 (b)(2). Additionally, it is not required to convene an IEP meeting or develop an IEP for the child. 34 CFR 300.300 (b)(3). • Under State Board Rules for Eligibility for Autism: “Autism does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance as defined in (d).” • Prior Written Notice: Shall be provided a “reasonable time before” the district proposes or refuses to initiate or change the identification, evaluation or educational placement of a child or the provision of FAPE. Shall include: • A description of the action • An explanation of why • A description of each evaluation, assessment, record considered • Procedural safeguards • Sources for parent to contact for assistance • Other options considered and why those were rejected • Any other facts

8. Chapter 2 You are minding your own business eating a healthy lunch consisting of coffee and a protein bar at 3:45 p.m. on a Friday when an email comes across your computer: Dear Dr. Underpaid, I have just left the Principal’s office at Overworked Elementary and I am horribly disappointed. I am a tax payer and I expect to be treated with respect. We have just moved here from Florida, but it hasn’t taken me long to see that your teachers are garbage and your administrators act like children. I told my son that he doesn’t need to listen to them anymore and I will be seeking private placement at public expense as soon as possible and my lawyer will contact you. I understand that an IEP meeting has been scheduled for Friday, but this will not be done until I can observe each day this week in each of my child’s classrooms and see each of the different placements that the IEP team will be recommending. I also need all of the reports that the IEP Team will be reviewing at the IEP Team, all data, the raw data, the speech language therapist’s notes (Tucker tells me she takes notes during therapy) and ALL educational records. We will NOT agree to hold this annual review until this happens. I don’t care about your deadlines. I am the parent, this is MY child’s IEP and MY child’s rights. YOU didn’t seem to care when it was MY child’s rights being violated when you didn’t bother to ensure that HE was making educational progress or that your staff were treating HIM with the basic level of respect that all humans deserve, especially individuals with disabilities. Sincerely, Mrs. Notgoing Away

9. After noticing that this email is also cc’d to your Superintendent, entire Board of Education, your Congressman, President Trump, and the local newspaper, you put your lunch aside and pick up the phone. What do you do?

11. FERPA defines “educational records” as “records, files, documents, and other materials which-- (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A). • The United States Supreme Court has stated that, “[t]he word ‘maintain’ suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled.” Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002). • Each LEA shall take steps to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting or are afforded the opportunity to participate, including notifying parents of the meeting early enough to ensure that they will have an opportunity to attend, and scheduling the meeting at a mutually agreed upon time and place . 34 C .F .R . § 300 .322(a)(1) - (2).

12. Chapter 3 You played the lottery for the past 32 weeks straight. And lost. So, you must be due for some luck, right? The phone rings at 7:37 a.m. on a Monday morning and you hesitate to answer it before you have finished your first cup of coffee, but you know that if you don’t answer it, things will only get worse. The call is from a parent, who says that her child is covered in bruises that were incurred at school when another student in her class manhandled her, that she is not putting up with it and that her daughter doesn’t belong with those kids anyway. PERHAPS, if they had bothered to teach her daughter to read, she might not act out and would never have been put with “them,” but instead, they just beat her up and now she is terrified to go to school, has been seriously injured which the emergency room doctor has confirmed, all her family members and even the doctor agree that everyone should be thrown in jail and she STILL can’t read. The Parent tells you that you better fix this quickly or she’s going to the six o’clock news. She hangs up on you after saying she is also calling the police. You call the school to determine what in the world has happened and why you are hearing about it from a parent instead of your staff. You don’t get many answers, so you hang up the phone and head to the school. You stop to buy another lottery ticket on the way.

13. Once you get there, what’s your first step?

15. Districts are entitled to select reading methodology; however, you need to be able to defend it and to be able to identify why it is suited to a student’s unique needs and will enable him/her to make educational progress. • Make sure you are familiar with mandatory reporting requirements – and what your role is with regard to mandatory reporting and PSC reporting within your district. O.C.G.A. § 19-7-5; O.C.G.A. § 20-2-1184 • State law regarding cameras in classrooms: O.C.G.A. § 20-2-324.2 • Does not mandate placement of cameras • Authorizes Georgia DOE to provide guidance for placement of video cameras in special education self-contained classrooms • Parents must receive notice prior to placement • Recordings must be retained for not less than 3 months nor more than 12 • Procedures to protect confidentiality of student records • Only be used for “monitoring classroom instruction, monitoring classroom interactions, and teacher observation….”

16. Chapter 4 At an IEP meeting for a student who currently receives support through direct special education instruction in a resource class for all academic subjects, supportive instruction for “specials” and lunch, the parent requests that the student be assigned a one on one paraprofessional. The principal looks at you and mouths the words “we don’t have any extra paras” and your eye begins to twitch as you think of your budget. The teachers explain that they feel like the student needs to establish independence and relies too heavily on adults as it is. They don’t want her to become prompt dependent. The parent said she agrees, but reminds you of the two times last year when you “lost” her child and no one knew where she was for hours on end and then spends the next 30 minutes telling you what could have happened and asks how you would feel if you were responsible for her child’s death all because you wouldn’t cough up the money for a para. The teacher then reiterates that the student was in the school building each time and under teacher supervision and while she had left her “area,” her behavior would not be considered elopement, nor was she “lost.” The parent says she called the school and no one knew where she was and if the teacher really cared about the student, she would have sent a note home about something other than negative behavior.

17. The previously calm group discussion spirals downward from there. You let everyone know that it sounds like it would be a good time for a “restroom break.” When you return to the meeting, you:

19. The IDEA requires that each public agency ensure that: • To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; • Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 C.F.R. §300. 114(a)(2) • You need to consider what will be the student’s least restrictive environment, but also what will enable the student to make educational progress – the LRE mandate does not override the FAPE mandate • Finding the balance is often where the difficulties come

20. Chapter 5 You get a call from a principal about a parent who requested hospital homebound for her child. The principal doesn’t understand this “nonsense,” and the paperwork says that the student has anxiety, requires an IEP and can return to school “with an appropriate plan.” You tell the principal that lucky for him “this nonsense” is your life and you would be happy to help. When you meet with the hospital homebound team, you request more information from the student’s doctor, but the parent tells you that it is all on the form and you really don’t need to waste any more time allowing the student to get further behind – he needs services immediately because the more he gets behind in his work, the more anxiety he will have. The team is unsure about whether the student meets hospital homebound requirements and unsure about whether the student requires an IEP at this point.

21. What do you do?

23. Hospital homebound might be appropriate if: The student is anticipated to be absent for a minimum of ten consecutive school days per year or the equivalent on a modified calendar or the student has a chronic health condition causing him or her to be absent for intermittent periods of time anticipated at a minimum of ten school days per year or five days on a high school block calendar. Georgia State Board of Education Rule 160-4-2-.31 • Under Section 504, A disability is defined as: • A physical or mental impairment that substantially limits one or more major life activities; • A record of such an impairment, or • Being regarded as having such an impairment • According to State BOE Rule, the school team shall use input from the medical referral form completed by the referring licensed physician or licensed psychiatrist who is treating the student for the diagnosis presented. • The parent or guardian must sign the parental agreement concerning HHB policies and procedures, and parental cooperation. A release for medical information relating to the reason for the request for HHB service may be required by the LEA.

24. Chapter 6 You get a call from your school board attorney that they have been contacted by an attorney who plans to attend an upcoming manifestation determination meeting in your district. You think she must be confused, because you don’t know anything about an upcoming manifestation determination. But, lo and behold, it is your district and your student. The matter involves a student with a specific learning disability who is being disciplined for fighting. Seems pretty open and shut, so you wipe the sweat from your brow. When you get to the meeting you review the behavior for the year and learn the student has been sent to “Tiger Time” every day for the last three months with a paraprofessional instead of allowing him to attend lunch, P.E. and specials. The information regarding the amount of time in Tiger Time is less than clear and there is no sign-in form to clear things up. There is also no information as to exactly what the student is doing during that time or exactly why he is going there; but it’s obvious it’s due to some kind of disruptive behavior in the regular classroom. The paraprofessional has not been invited to the meeting to help provide further input. You look in your bag for anything to get rid of your headache. The student’s attorney is peppering you with questions that, frankly, you didn’t expect and can’t answer.

25. Next you:

27. If you decide to take this route, the Student must return to school until you can make a determination. • Beware of the hidden Tiger Time. Are we implementing the IEP and can we prove it if we do not know how much time the Student spends with a paraprofessional and not a teacher? Could this be considered a removal? • A manifestation determination must be conducted within 10 school days of "any decision to change the placement of a child with a disability because of a violation of a code of student conduct." 34 CFR § 300.530 (e). • A change in placement occurs when a removal is for more than 10 consecutive school days; or the child has been subjected to a series of removals that constitute a pattern because the series of removals totals more than 10 school days in a school year; because the child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals; and because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another. 34 CFR § 300.536.

28. Chapter 7 It’s the last day before Spring Break and while you usually spend your school breaks with a stack of paperwork, this year you are getting on a cruise ship to Honduras, Aruba and Puerto Rico. There will be unlimited snacks, drinks and ZERO cell service. It’s just what the doctor ordered. But before you can get out the door, a DOE complaint arrives in the portal and in the mail. The parent of a student in your District alleges that you failed to identify Jacob as a student with a disability when he was privately diagnosed with dyslexia. Your district only provided him with services through RTI. The Team had considered the diagnosis, had even evaluated pursuant to IDEA, but did not find that he required specialized instruction. The parent’s complaint alleges that, according to research, his diagnosis requires a specialized reading methodology which he is not receiving. His progress monitoring shows that he is making progress, albeit very slow progress. The District utilizes a research-based reading program and some computer-based interventions for reading throughout the district, but you are not sure if they are programs specifically geared towards students diagnosed with dyslexia. You have ten days to respond and you will be gone seven. And the teachers will be gone, too. Is there a way to pretend that you didn’t see this? What do you do? And should you have made him eligible? And now that the parent is claiming she will be seeking private placement is it too late to offer different reading programs? Can’t a woman just get on a boat and get a drink in a pineapple and be left alone for once?!

29. Clearly not, so you…

31. Senate Bill 48 – Not yet passed, signed or implemented • As it stands – sets up new requirements for screenings, data collection and data reporting • Development of pilot programs • Sets up provisions for new state policies to include, among other elements: • A definition of dyslexia and other disorders • Establishing a list of “approved dyslexia screening tools” • The process for screening all K students and referring certain students in grades 1-3 • Processes for parental consent and declining consent • “Identification of evidence based interventions, structured multisensory approaches to teach language and reading skills, and accommodations that schools may utilize to provide services to students with characteristics of dyslexia” • Processes for monitoring progress

32. It’s been a long journey, what do you do?