Colorado District’s Failure to Evaluate Student While Implementing RTI Violated 504

In Harrison (CO) School District Two, 57 IDELR 295 (OCR 2011),  the Office for Civil Rights determined that implementing RTI strategies did not offset the school district’s failure to timely evaluate and reevaluate a student with ADHD. The student’s mother enrolled the student in the district for the 2008-09 school year and made it clear the student had ADHD. Instead of evaluating the student for special education eligibility, the school district implemented RTI strategies. The following school year, the mother repeatedly mentioned the child’s ADHD and when the student’s behavior escalated, she requested an evaluation for special education eligibility. Instead of evaluating the student, the district intensified the RTI strategies that were already in place. Unfortunately, the student received ten suspensions for his behavior. The district did finally complete an IEP for the student in June 2010. The mother filed a OCR complaint alleging the district’s denial of a free appropriate public education (FAPE) in failing to timely evaluate her son and significantly changing his placement before conducting a manifestation determination review.

 Responding to the school district’s position that it had used RTI throughout the student’s enrollment, OCR pointed out that RTI does not justify delaying or denying the evaluation of a student with a disability who is believed to need special education or related services. Moreover, students who may need special education should be evaluated in accordance with 34 CFR 104.35(a) before initial placement or a significant change in placement is determined. The OCR pointed out that this student’s behavior was consistent with ADHD, the district’s RTI strategies were not effective, and the student’s behavior escalated. The frequency and number of suspensions constituted a significant change in placement and the district changed his placement without considering whether his ADHD related to his misconduct. Thus, the student was denied FAPE.

In order to resolve the complaint, the school district agreed to a Resolution Agreement with OCR. The agreement required, among other things, that the district determine the extent to which the student was denied an appropriate education and to determine whether and what compensatory services the student is due to make up for the loss of an appropriate education. Additionally, the school district agreed to conduct 504 training for school staff, including the individuals responsible for implementing this student’s 504 Plan or IEP during the 2009-2010 school year and school employees present at the student’s 504 and IEP meetings during the 2009-2010 school year.

OSEP Letter says school districts may set timelines for parents to submit IEE reports before scheduling an IEP meeting

In Letter to Addressee 111 LRP 68370 (OSEP 2011), the Office of Special Education Programs has stated that school districts, as part of their Independent Educational Evaluation (IEE) criteria, may require that parents provide the complete independent evaluation report by a certain time, even before setting the date for the IEP team meeting.

The OSEP was asked by letter if a Maryland school district could require the parent to deliver the report before the IEP meeting date was scheduled. It should be noted that the IDEA does not set a particular deadline for a parent to submit a private evaluation report before an IEP team meeting. The IDEA regulations, however, do provide that if a parent obtains an IEE at private expense the district must consider the evaluation in any decision regarding the provision of a free appropriate public education if the evaluation meets agency criteria.

The Office of Special Education Programs responded saying: “We believe it would be reasonable for a public agency to establish criteria, including a requirement that it receive the entire evaluation and not just the  scaled scores by a certain time, to give the public agency the opportunity to review the report prior to scheduling an IEP team meeting to discuss the evaluation. Such criteria would need to be provided to parents in advance or otherwise made available publicly so that individuals seeking an independent educational evaluation are fully informed.” (emphasis added).

 Please note, that while OSEP says school districts may add a requirement that parents submit IEE reports before setting the IEP team meeting time to the district’s IEE criteria, it seems to me that (1) the new requirement must be written and added to the district’s IEE criteria, and  not assumed to be in effect based on this OSEP letter and (2) the school district must provide the criteria to parents in advance or otherwise make it publicly available so that parents seeking an IEE are fully informed.

Illinois School District Should Have Addressed Student’s Auditory Processing and Assistive Technology Needs

 In City of Chicago School District 299, 57 IDELR 29, (SEA  Il 2011) an 8th Grade boy  with specific learning disabilities exhibited problems with reading, writing, listening, and integrating sensory information. In fact, he had exhibited some of these problems as early as 1st Grade. Unfortunately, despite repeated red flags that the student needed additional support, the school district did not evaluate his auditory processing and assistive technology (AT) needs. Moreover, the district failed to write adequate, measurable goals on his IEP. Thus he was placed in general education classes without adequate support. Dissatisfied, the parent obtained  independent educational evaluations (IEEs) that indicated the student needed AT in order to read and write, occupational therapy, and intensive services related to reading, writing, listening, and auditory processing.  Since she believed the school district’s evaluations were inaccurate and inadequate, the parent had asked the school district to support paying for the IEEs, but her requests were ignored. Since the school district was not forthcoming in resolving these issues, the parent then requested a due process hearing to obtain appropriate services for her son.

The hearing officer found in the parent’s favor. Based on the IEEs and testimony, the hearing officer determined the district had not done adequate or frequent assessments of his auditory processing and AT needs and it had not reviewed all of the information the parent provided, including the information from the IEEs. Thus, the district’s IEP was based on inadequate evaluation information. This resulted in the continued use of an unsuccessful reading methodology and a deficient IEP, with goals that were (1) too few and (2) unmeasurable.

Finally, the Hearing Officer granted the parent’s request to place her son in a private therapeutic placement for students with significant learning disabilities. Additionally, the hearing officer ordered the school district to reimburse the parent for the cost of the IEEs and to provide her son with compensatory educational services.

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