Vague IEP Description of Assistive Technology (AT) Impeded Students Access to writing technology

Parents, advocates, and educators frequently ask how much detail is required when writing a service on an IEP. Here’s a case that helps answer that question. In Minneapolis Special School Dis. #001, 62 IDELR 276 (SEA MN 2013), the Minnesota State Education Agency (SEA) found that AT services on a student’s IEP were too vague to be implemented.  The student’s IEP stated that he needed assistive technology for his written work but only indicated that “a tape recorder is an option that could be tried” and that “a portable word processor with predictive language software, can be available to him.” After the student refused to use the the school’s portable word processor, the parents filed a due process complaint.

The Hearing Officer ruled for the parents, explaining that the school staff responsible for implementing the IEP must be informed of their specific responsibilities and must be informed of the specific accommodations the student needs. Here, the district failed to identify what particular assistive technology the student needed and how to incorporate the technology into the student’s curriculum. The IEP provision was so vague it “left the implementation of the adaptations open to the subjective interpretation of the student’s teachers and the parties.” Additionally, the IEP failed to describe and explain to the school staff their specific responsibilities and duties regarding the student’s modified curriculum and required accommodations. This violated the IDEA. The school district was ordered to provide compensatory services for the student and to train its staff in how to properly develop and implement future IEPs.

In light of student’s increased absences, the School district should have revised her 504 Plan

In San Diego Unified School District, 113 LRP 15333 (OCR 01/31/13) a California school district learned that a 504 Plan is not a static document and if there are indications that a student’s disability related needs have changed, the school district should consider revising the 504 Plan. In this case the student has serious medical conditions and was missing a lot if class time. The school district developed a 504 Plan that included extra time in assignments, exemption from PE, and a pass to see a nurse when she felt ill. Despite these accommodations, the student’s health continued to hinder her attendance and academic performance. Rather than revise the 504 Plan, school administrators told the parent, she should look for an alternative setting for the student. They explained that this high school was a “comprehensive high school” and that other district schools “typically deal with more challenged, health related anomalies.”

After an independent evaluator diagnosed the student with dyslexia and dysgraphia, the parent  requested changes in the 504 plan to address the new diagnoses. The school district, however, believed these were only mild forms of these conditions and refused to change the 504 Plan.The parent then hired a private tutor to assist her daughter and filed a complaint with the Office for Civil Rights (OCR) for violations of 504. OCR determined that as the student’s attendance and academic performance continued to deteriorate, the district should have reviewed and modified the 504 Plan. Here, the district could have offered home tutoring or other services to assist the student with keeping up with her assignments when her health required she stay home. The Office for Civil Rights noted that instead of reviewing and modifying the plan, the school put the burden on the student and her family to look for another school to more accustomed in “dealing with more challenged, health related anomalies.” Again, 504 Plans are not static documents and must be reviewed and modified as a student’s needs change.

 

Recent OCR School Service Animal Resolutions

     This post will provide a summary overview of several recent Office for Civil Rights (OCR) resolutions involving students with disabilities  and service animals.

      In  School Admin. Unit #23 (NH), 113 LRP 32108 (OCR 05/22/13), resolved a complaint with a New Hampshire school district regarding a dog that alerted when the student was having a seizure. The school district agreed to train two aides in how to handle the dog. Moreover, the district agreed to revise its service animal policies and procedures, train staff on how to respond to the presence of service animals, and publish the approved policy on the district’s website and in student handbooks.

     In Catawba County (NC) Schs.,61 IDELR 234 (OCR 2013) the school district had refused to allow a student with self injurious and eloping behavior to bring his service dog to school. The dog was trained to help calm the student when he was having a “meltdown” and to retrieve him when he eloped from the school grounds.The principal and superintendent refused to permit the dog to accompany the student to school on the basis that its presence would “fundamentally alter the program and services of the school system.” OCR, however, determined that the dog would not interfere with the student’s IEP goals and would help him cope with his aggression. In its findings OCR noted that the principal had stated “I do not know what the dog does” and the superintendent didn’t know the dog’s function either. Thus, these two administrators had not bothered to learn why the student needed the animal. The district agreed to facilitate the student having the dog at school.

 Jackson County (MI) Intermediate Sch. Dist., 59 IDELR 172 (OCR 2012), a Michigan district decided that the tasks a service animal performed — helping the child with balance and support, retrieving dropped items, and taking off her coat — were already performed by an aide. Thus, there was no need for the student, an 8 year old girl with cerebral palsy, to have the animal with her at school. OCR determined that since one of the purposes of Title II of the ADA was to promote independence of persons with disabilities and, here, the service animal assisted the girl in being more independent, denying her the use of the animal was a violation of 504 and the ADA. To address Section 504 and Title II compliance concerns, the district agreed to develop a plan to fully and effectively integrate the student’s service animal into the school environment and to allow the animal to accompany the child during all school-related activities.

     Finally, in Alpine (CA) Union Elem. Sch. Dist., 112 LRP 49101 (OCR 07/19/12) a California school district agreed to resolve a complaint that it had not allowed a student with a disability to be accompanied by his service animal at end of the school year celebrations. As a result, the student had not had an opportunity to equally participate in those activities. To resolve the complaint, the district voluntarily entered into a agreement which commits to the following: 1) revising its service animal policy and Section 504 policy; 2) providing training on for all district staff regarding Section 504 and service animals; and 3) providing a letter to the student. The district further agreed to submit draft policies regarding service animals and Section 504 to OCR for review. Finally, the district will provide OCR with documentation regarding the district-wide training on service animals and Section 504.

Virtual Public Charter School Required to Comply with Section 504

The U.S. Department of Education recently announced an agreement with the Virtual Community School of Ohio, an internet based based, public charter school, ensuring compliance with Section 504 and Title II of the ADA. In the press release announcing the agreement, the Department of Education states:

“This first-of-its-kind resolution promises  equal access to educational opportunities for students with disabilities at the school.” And, the press release goes on to say:

“Students with disabilities who attend online public charter schools are entitled to all the protections of the federal civil rights laws that their peers receive at traditional public schools, including the right to receive a free appropriate education.  Online schools also must take steps to ensure that the websites and online classrooms they use to promote their services and to educate students are accessible to individuals with disabilities.”

The agreement requires the virtual school to:

  • Develop Section 504  policies and procedures so that students with disabilities are appropriately identified, evaluated, , and provided services to ensure they receive a FAPE;
  • Notify parents, guardians, and students of the revised Section 504 policies and procedures;
  • Evaluate or reevaluate students with disabilities enrolled in the last two years to determine whether they need compensatory special education and/or related aids or services and, based on this evaluation, promptly provide compensatory services;
  • Publish contact information for the school’s Section 504/Title II coordinator and ensure that the coordinator is appropriately trained;
  • Develop and publish grievance procedures that provide for the prompt and equitable resolution of disability discrimination complaints;
  • Provide training to staff involved in the evaluation and placement of students with disabilities;
  • Develop policies and procedures to ensure that the school’s online technologies are accessible, including the adoption of technical standards to ensure accessibility;
  • Revise its website and on-line learning environment so that they are accessible to individuals with disabilities, including students with visual, hearing, or print disabilities and those who otherwise require use of assistive technology to access the school’s program;
  • Monitor the accessibility of the school online technologies; and
  • Provide annual training for staff responsible for online technologies about the school’s

accessibility policies and procedures and their roles and responsibilities in ensuring online content is accessible.

The Office for Civil Rights will monitor the schools implementation of the agreement.

Choosing home

Choosing home

They’re disabled, not retired or waning, but they’re being warehoused in nursing homes

  • Tessa Cheek
  • September 12, 2013
  • Dig In
  • 2 Comments

Choosing home 

This post is an article by Tessa Cheek and was first published on September 12, 2013 with The Colorado Independent

 

One hundred and thirty-nine Coloradans under the age of 65 who live with developmental disabilities are being warehoused in privately owned nursing homes throughout the state in violation of the Americans With Disabilities Act.

Lawmakers have been alerted to the problem since 2010, when the Colorado Department of Health Policy and Financing (HCPF) released a report on institutionalization in response to a U.S. Supreme Court decision involving a case called Olmstead vs L.C out of Georgia. The Court ruled, in accordance with the ADA, that the “unnecessary segregation of individuals with disabilities in institutions is a form of discrimination based on disability.”

Two governors and two executive orders later, Colorado’s numbers are down about half from 275, but critics say progress isn’t coming nearly fast enough. Advocates say officials don’t seem to feel any urgency but that young- and middle-aged nursing home residents lament that their lives are slipping away in the months and years they’ve been isolated from peers and cut off from the regular rhythms of daily life.

There’s often a “common theme” in the way bureaucrats deal with developmentally disabled clients, says Randy Chapman, director at the Legal Center for People with Disabilities and Older People, a federally funded law office that watchdogs nursing facilities and other institutions in Colorado. “These folks are viewed as having a place to be, as having ‘three hots and a cot’– but there’s not really the recognition that they’re being inappropriately institutionalized.”

When reviewing the state report in 2010, Chapman was astonished to find that, in addition to the 275 Coloradans institutionalized for developmental disabilities, there were almost 2,000 others institutionalized for mental illness. Of those, the majority are on Medicaid and a third are younger than 65 years old.

“We have no reason to believe that folks in nursing homes, without active monitoring, are free from abuse and neglect,” says Chapman. “Unfortunately, community and advocacy programs haven’t been targeting them because they have their hands full… Meanwhile, the people the Olmstead case was supposed to protect are being institutionalized and ignored.”

Please click here to see a video interview with Jennifer Blankenship discussing being free form the nursing home.

Presenting options

Colorado currently houses more people with developmental disabilities and mental illness in nursing homes than in all state-run facilities combined. Nationally, some 200,000 Americans under 65 live in nursing homes, accounting for 16 pecent of the total nursing home population.

Despite national and local efforts following the Olmstead decision, a July report prepared for the U.S. Senate found that “the population of individuals with disabilities under 65 in nursing homes actually increased between 2008 and 2012.”

Lorez Meinhold, who runs the Community Partnership office at HCPF, says her department is aware of the problem and is working on addressing it. She noted that the state launched the Colorado Choice Transitions program in March, mobilizing extra federal grant funding. “CCT is a $22 million, five-year grant initiative that is expected to move approximately 490 Medicaid clients from nursing homes into home and community-based settings,” reads a release from HCPF.

Meinhold notes that, as a result of the 2010 Colorado Olmstead recommendations, new nursing home residents are being asked if they would like to speak with someone about options tied to living in housing that’s more integrated with the community.

But the new policy has not been applied in every case.

Disintegration

Beth Will is one of many who fell through the cracks. For almost 30 years, Will – who has a brain disability — lived with support in an apartment in Glenwood Springs. She worked three jobs, one for 14 years. She has been with her common-law husband, Reggie Jaramillo, for 25 years, a decade of which they have lived together.

After being hospitalized with renal failure and severe cellulitis in 2011 and with her partner also ill, Will was discharged to a nursing facility to recover. Just over two months later, her physician noted that she was healthy enough to receive services in a group home. But in the system’s eyes, it was already too late.

“Reggie and I went in together,” Will explained of the couple’s admittance to a nursing home in Glenwood. “My Reggie, love of my life, love of my entire being, he got out in under 60 days, got his services outside. But I didn’t get out in time. I lost my services. Here I was supposed to be out in two weeks like Reggie, but I ended up in the nursing home for a year.”

For Will, who is 49 and used to a more independent life, it was a very long year. Once the staff at her nursing facility discovered that she liked grilled cheese, they served it to her for breakfast, lunch and dinner.

“Sometimes they would bring burned grilled cheese, I’d get upset, and everybody thought I was just being crazy,” Will says. “I take medication and usually I’d have to wait a long time. It could be as late as two or three in the morning when they would bring me my medicine… I’d be laying there, pushing the caller button for hours.”

Will had lost the Medicaid waiver that entitled her to receive long-term care in a community setting. Accustomed to self-advocacy, she began to call everyone from her former providers at Mountain Valley Developmental Services to independent advocates, and even service coordinators based four hours away in Denver.

Will says each of those phone conversations began like this: “Hi, this is Beth, How are you? Save me, save me, save me! Oh please, I’ll never say another bad thing. I’ll never do another bad thing. Oh please, get me out.”

Jennifer Shook, who advocated for Will on behalf of the Legal Center, says that medical professionals did not clear the long-term stint in a nursing home with Will herself. “The problem is that other options weren’t provided,” Shook says. “They just decided.”

Days turn to years

Will was not alone in that experience. Many people living with disability or chronic illness become sick and find that their treatment results in extended institutionalization.

Jennifer Blankenship, 52, lived independently since she was diagnosed with primary progressive multiple sclerosis in 1984. A series of chronic urinary tract infections landed her in the hospital in 2011, followed by nearly two years living in a nursing home in Lakewood.

“Institutions are dehumanizing,” she says. “You completely lose your identity. You give away all of your power. I was on so many meds the whole time I was there — six narcotics and valium.”

Blankenship fought for over a year to get released from Mapleton Care Center. She is sharing an apartment in Broomfield with her close friend and caregiver, Chris Anderson. Now that she is living independently, Blankenship notes that she takes only one aspirin a day. She feels like she has finally awoken after a long and troubled sleep.

“People more or less go to nursing homes to die, and I wasn’t ready,” she says. “No one has a clue what it’s like. Even the people who work there have no idea. They get to go home on the weekends. The weekends felt like years for us.”

Although Blankenship and Will were among dozens of Coloradans under 65 who managed to finally move out of nursing homes, many more have grown too accustomed to nursing home settings to consider leaving.

Since 2010, the Legal Center has visited more than 30 nursing facilities in the state asking young residents whether they want to live.

“We have to remember we’re complete strangers coming into their [nursing] homes and asking if they’re happy,” says Shook. “In some cases they’ve been in a nursing home for something like 25 years. The staff are their family. The idea of being out, of not having that structure, is really scary. In some cases they don’t know what their options are. In others, they can’t imagine not being there.”

A ‘big family’

Donald Nagel, 56, has been living in a Cottonwood Care Center, a nursing home in Brighton, for just over a year. It’s the latest in a long line of similar facilities from which he bounced throughout the state over the course of three years after several ruptured disks in his spine landed him in a wheelchair.

Nagel remembers times when he smoked three packs of cigarettes a day washed down with three fifths of Jack Daniels. Now he’s down to a strict regimen of six cigarettes smoked during six trips to the nursing home’s shaded entryway. Those smoking breaks, and the trips back and forth down the long hall to his room, make up the rhythm of his days.

Cottonwood Care Center, Nagel explained, is by far the best of any nursing home he’s lived in. He receives regular physical therapy for his back and vows to some day walk away from his wheelchair. Though he wouldn’t mind living in an apartment in Brighton, a town he’s come to like, Nagel doesn’t plan on leaving the comforts and services of the care center any time soon.

“I like it a lot here,” he says. “These people have done a hell of a lot more for me than anyone else has. Yes, it’s humanizing. Yes, we’re a big family.”

Nagel has found a role in that family. Full-blooded Irish, he loves to sing ballads to fellow residents. We sat in the care center’s privacy room (an unusual and much-appreciated feature, according to Nagel) while he sang softly to me.

Strangers came and tried to teach us their ways
they scorned us for being what we are.
Well they might as well go chasing after moonbeams
or light a penny candle from a star.

“There’s things I’ve done for people here that I normally don’t do for other people,” Nagel says. “One of the older residents from the other unit asked me to fix his pocket radio. I had it fixed in five minutes. He wanted to pay me but I said no, not possible.”

Some young and middle-aged residents stay in nursing because the discharge process is often arduous and confusing. Nagel, for his part, stays because he has found here a sense of belonging and purpose that he would miss living on his own.

Despite evaluation statistics showing that a majority of young people admitted to nursing facilities say they hope to leave, the vast majority ultimately choose to stay. Blankenship and Will were two of only a handful of Coloradans to accept the Legal Center’s offer to help find housing outside their nursing homes.

In Will’s case, the state continued to deny her funding months after she was approved to regain her community-based services. Ultimately her case’s managing attorney, Bill Higgins, wrote a long letter outlining the state’s violations of the Olmstead ruling and the Americans With Disabilities Act. A month later, Will was discharged.

The potential

For both Blankenship and Will, the transition back into the community with help from the Legal Center and their own Medicaid-funded care providers took about a year of bureaucratic red tape. Both are painfully aware that others, disempowered and often medicated like zombies, are still warehoused in facilities meant for residents many decades older..

“At the end I was terrified,” Blankenship says of the seemingly interminable weeks when her release from the nursing home started to seem real. “It felt like even one more hour in there and I wouldn’t survive.”

It has been only a handful of months that Blankenship has spent in her sunny new apartment in Broomfield. To her, the time has passed so quickly that it seems like only a handful of days. Life, she says, is so much more sweet, bright and full on the outside than the inside.

“Even a banana from the market is so fresh and so flavorful,” Blankenship sighed. “The food at the nursing home is bought in bulk so truly it all tasted like pudding.”

Breaking out of institutionalization has in many ways given Blankenship her life back. She is living like a woman her age – in her 50s – rather than someone of her mother’s generation waiting for death. She pauses sometimes, fighting back tears, as she describes the joy of occupying a world of renewed hope and life, including her new kitten, Monster, who is somersaulting on the couch beside her.

“My favorite thing about living here?” Blankenship laughed, beaming as she looked around her new home. “The potential.”

Charter school violated IDEA by dis-enrolling student during pendency of a hearing

In an unpublished opinion the 3rd Circuit Court of Appeals ruled that a charter school violated the stay put provisions of the IDEA by dis-enrolling a student with Down syndrome after she missed 10 consecutive days of school. (R.B. v Mastery Charter School, 113 LRP 30422 (3rd Cir 2013, unpublished). Pennsylvania state law required that students be removed from enrollment after missing 10 consecutive school days. Here, the student had missed eighteen months, but the parent had requested a due process hearing. The Charter School argued that after missing the consecutive days of school, based on state law, the student became the responsibility of the school district of residence, not the charter school.

The 3rd Circuit upheld a district court decision, R.B. v Mastery Charter School, 762 F. Supp. 2d 745 (E.D. Penn 2010), that found dis-enrolling the student violated the IDEA. The courts reasoned that stay-put  during the pendency of a hearing, was the  placement identified in the student’s last implemented IEP. Here, that was the Charter School placement. The IDEA preempted the state law requiring dis-enrollment after 10 consecutive days of absence. The Court said that to do otherwise would allow schools to  unilaterally change a placement  and then argue the new change was stay put and the status quo.

MDR Teams Must Look beyond the Student’s Special Education Eligibility “Label” when Making a Manifestation Determination

One benefit of having a blog is having a forum to express my pet peeves. A major pet peeve of mine is those school districts and their attorneys who refuse to consider information related to conditions and disabilities a student may have other than the student’s special education disability label when conducting a manifestation determination review (MDR).

The manifestation determination review process was first put in place by the Office of Special Education Programs (OSEP) in 1995, when it issued its Memorandum 95-16, 22 IDELR 531 (April 26, 1995). The Office of Special Education Programs acknowledged that behavior, even inappropriate behavior that is caused by a disability, should be responded to differently than when the behavior is not related to the disability. Of course the IDEA was amended in 1997 to codify the MDR process.

If the purpose of conducting a manifestation determination is to not discriminate against students with disabilities by punishing them through expulsions and other long-term disciplinary sanctions for behavior they can’t help due to having a disability, then we must consider information related to conditions other than the special education “label”. If we only consider the student’s special education label in the MDR process and ignore other conditions that contribute to the student’s behavior, then we risk punishing the student for behavior related to a disability. That violates not only the IDEA, but 504 and the Americans with Disabilities Act as well.

Here is a decision that makes this point. In Seattle School District, 60 IDELR 266 (SEA WA 2012), the Administrative Law Judge (ALJ) for the Washington State Education Agency required a school district to re-do an MDR because it had not considered information regarding other disabilities than the student’s special education disability “label”.  The student had been identified for special education eligibility as having ADHD. When his MDR took place he had also been diagnosed with disruptive behavior disorder and with anxiety disorder. The MDR team did not consider information about these two other conditions.

The ALJ ruled that the MDR team must consider all relevant information in the student’s file, including the IEP, teacher observation, and any relevant information provided by the parents. The ALJ cited several SEA decisions and a OCR decision in stating that: “School districts may violate the IDEA when their manifestation determinations are based only upon the disability on which the student’s special education eligibility is based.” See Renton Sch. Dist., 111 LRP 3970 (SEA WA 2011); Snohomish Sch. Dist., 103 LRP 38270 (SEA WA 2003); Murrieta Valley Unified Sch. Dist., 53 IDELR 108 (SEA CA 2009); and Quincy (Wa) Sch. Dist., 52 IDELR 170 (OCR 2009).

So, when conducting a manifestation determination review the team should consider all relevant information including information regarding disabilities the student may have other than the disability on which the student’s special education eligibility is based.

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