when things go wrong… · student should get 60 minutes per week of ... 54 idelr 274 (3d cir....
TRANSCRIPT
2/8/2017
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PAULA MADDOX ROALSON
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WHEN THINGS GO WRONG…A BRIEF LOOK AT COMPENSATORY SERVICES
AND OTHER MISTAKE FIXERS
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Compensatory Services,Generally Speaking
Who is entitled to compensatory services?
Compensatory services are future services to be provided to a student to make up or compensate for a school district’s failure to provide the student with appropriate services in the past.
TEA Dispute Resolution Systems Handbook (October 2016)
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For example, if a student’s IEP says that the student should get 60 minutes per week of speech therapy, and it is determined that the student did not receive speech therapy for a time period, the student might be entitled to extra speech therapy sessions to make up for the sessions that were missed.
What are compensatory services?
Courts and Hearing Officers have authority to award “appropriate relief” when a student has been denied FAPE.
Compensatory education is considered to be one way of providing “appropriate relief”—it is “an equitable remedy to be granted upon finding that a child has been denied FAPE under the Act." Diatta v. District of Columbia, 41 IDELR 124 (D.D.C. 2004).
Why are they awarded?
“…this specific type of equitable relief would only be granted on a case-by-case basis, depending on the specific situation of each student. In each case, a court will evaluate the specific type of relief that is appropriate to ensure that a student is fully compensated for a school district's past violations of his or her rights under the IDEA and develop an appropriate equitable award.” Ferren C. v. School Dist. of Philadelphia, 54 IDELR 274 (3d Cir. 2010).
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When Things Go Wrong
Ways that things go wrong and result in a need for compensatory education:
Types of cases in which compensatory education services are awarded:
Failure to Identify—the child should have been receiving special education services under the IDEA but the school district did not timely evaluate/identify the child as in need of services
Failure to Develop an Appropriate IEP—the child’s services/placement do not afford the child with FAPE
Failure to Implement the IEP or Inappropriate Implementation of the IEP—the child’s services/placement are calculated to provide FAPE, but school personnel do not implement them appropriately or correctly
Failure to Identify
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M.M. v. NYC DOE, 63 IDELR 156 (S.D.N.Y. 2014)
When the student was 17 years old, her parents reported that she was diagnosed with depression, anorexia, and suicidal attempts. She rarely attended school. At her parents’ request, the student received home instruction from the school. The student was hospitalized multiple times.
Her parents subsequently enrolled her in a structured private boarding school in Utah for students with eating disorders. The school followed the state curriculum and educational plan.
After sending the student to Utah, the parents referred the student for special education in her home school in New York City.
The NYC special education committee interviewed the student and determined she would not qualify for special education on the basis of her advanced grades. The committee also recommended the student’s placement in general education classes.
The parents then requested a special education due process hearing. They asked for reimbursement of the costs associated with the private program for the student in Utah, arguing that the school should have identified the student as in need of special education and then provided appropriate services to meet her individual needs.
The parents won the due process hearing, but the school won the case on appeal to a state review hearing officer. The parents then appealed the case into federal court.
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You be the judge13
Who won the case in front of the federal judge?
A. The school district, because the student was making progress in the general curriculum without specially designed instruction & she was truant.
B. The school district, because the parents sent the student to Utah without prior notice to the school that they intended to ask the NYC school to foot the bill for the Utah placement.
C. The parents, because the school failed to identify the student as IDEA eligible and provide an appropriate placement.
D. The school, because ultimately, it was discovered that Grandma had agreed to pay for the Utah placement.
C. The student and her parents win
This was largely based on the student’s failure to attend school and the school’s decision to place her on homebound. Key Quotes:
“First, the SRO focused on an assessment of L.F.’s grades without considering the more fundamental question of whether L.F. could even attend school.”
“The government must find ways to open the school house doors, by helping children who suffer from emotional problems to attend school. She was absent from school for weeks at a time, and in her last months in the public school system….was unable to attend at all. During those last months, the DOE gave L.F. home instruction, a program which is normally only given to disabled students.”
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What relief was awarded?
The court awarded the parents reimbursement for the costs of the unilateral private placement.
CAN THEY DO THAT? WHY DIDN’T THEY AWARD COMPENSATORY EDUCATION SERVICES IN THE HOME SCHOOL DISTRICT?
Because the parents established that the school program was inappropriate and the private program was appropriate to confer FAPE
Failure to Develop an Appropriate IEP and Placement
L.O. v. NYC DOE, 67 IDELR 225 (2nd Cir. 2016)
The court found that a combination of procedural errors resulted in a denial of FAPE for three years. The district 1) did not identify the evaluation material that it reviewed and relied on; 2) did not conduct a FBA, which violated state law; 3) failed to offer appropriate speech/language services; and 4) violated state law by failing to offer parent counseling and training for the student with autism.
Comment: What is highly unusual about this case is that the school prevailed before the hearing officer, the state review officer and the district court. The Circuit Court reversed.
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What relief was awarded?
The Court remanded the case back to the lower court to develop and Order an appropriate award of compensatory education services.
Failure to Implement IEP Services and Placement
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Holman v. District of Columbia, 67 IDELR 39 (D.D.C. 2016)
During her final year in school, the 18 year old student was scheduled to receive 3.3 hours of special education services each day in a general education environment.
But the school only scheduled a special education teacher to be in the student’s general education classroom every other day, for a total of approximately four hours of service per week.
On top of that, the sped teacher was absent at least once per week; on days when she was there, she didn’t stay with the student in the classroom the entire time.
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Despite the failure to receive all of the IEP services to which she was entitled, the student graduated with a class rank of 60 out of 130 students. When the student sued the school district for a denial of FAPE, who won the case?
A. The school, because the student had graduated with a regular diploma
B. The student, because the school failed to implement required IEP services needed for FAPE
C. The school, because the student passed her classes and was an “average” student as noted by her class rank
You be the judge
B. The student wins
The court concluded that less than half of the IEP services were actually provided. This amounted to a material failure to implement the IEP.
The court held that the student did not need to demonstrate that she suffered harm—only that there was a “material failure” to implement the IEP.
Comment: The court clearly held the opinion that the school district simply graduated the student without providing any educational benefit. Thus it completely discarded the fact of graduation and the student’s standing in the upper half of the graduating class.
What relief was awarded?
The court ordered the district to convene an IEP meeting for the student, who would remain eligible for compensatory education until age 22.
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How to Offer Compensatory Services
Considerations
What went wrong?
Was this a procedural violation, or a substantive violation, of the child’s rights?
Do you know the difference and why it matters?
What documentation is in place that supports the concern?
How long has the concern existed? When did we first make a mistake?
Fear of liability exposure
We need to acknowledge if we owe the child compensatory services. It’s the right thing to do for the student.
Saying “I’m sorry” won’t result in liability.
Trying to cover up a mistake will.
Refusing to turn over student records to a parent can create exposure under the IDEA.
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Considerations
When the school becomes aware that a student has not received appropriate services, school administrators should investigate the concern. Immediately.
If the concern is substantiated, the school should consider making an offer of compensatory services to the student.
An offer of compensatory services does not have to be made during an ARD committee meeting, but the ARD is the best place to document compensatory services. Any offer should be made in writing.
Even if agreement cannot be reached on the amount of compensatory services, be sure to confirm the school’s proposed offer of services in Prior Written Notice.
What do I offer?
Services to make the student “whole” again. Services designed to ensure that the student benefits from his/her special education program.
Compensatory services come in many different shapes, forms, and length of duration.
Possible ideas:
Training for staff members regarding IEP development and implementation
Tutoring at school expense
Summer services (in addition to ESY, if required) to make up for lost service time
Additional related services
Reimbursement to parents for outside tutoring or programs
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Q & A
Do compensatory services have to equal an hour per hour time for missed services? Will we really owe the student 962 hours of compensatory instruction?
It depends. Compensatory services can be counted hour for hour/day for day; however, some courts will not apply that strict analysis and will instead look
The student is about to graduate from high school with a regular diploma. Will that cut off the student’s right to receive compensatory services?
No. Cases have held that the student remains entitled to compensatory services required to make up for a denial of FAPE.
Can compensatory services be ordered by TEA in response to a substantiated TEA special education complaint? I thought only a court could award compensatory services.
No. TEA has authority as the SEA to award compensatory services as corrective action. Special Education Hearing Officers also have authority to award compensatory services upon finding that a District violated a student’s right to FAPE.
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We offered compensatory services to the student, to take place in the summer of 2017. We just got word that the student moved across the state. Do we still have an obligation to provide the services?
Yes, because the services are making up for a denial of FAPE. Consider contracting with the local school district where the student now resides, or a private provider in the area, to implement the compensatory services agreed upon.
Our program and placement look great and are affording the student FAPE. Since we are now in compliance, do we still owe the student compensatory services for a past issue?
Yes, you may still owe the student compensatory education. See Boose v. District of Columbia, 65 IDELR 191 (D.C. Cir. 2015)
The information in this handout was created by WALSH GALLEGOS TREVIÑO RUSSO & KYLE P.C.
It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is
sought, consult an attorney.
Copyright © 2017 Law Dawg's Ed Daily, All rights reserved.
DAWG BONES
Attorney seeks over $100K in fees from
district; court awards $6,500. How
does this work?
January 30, 2017 / Jim Walsh
A recent decision from the federal court in Beaumont illustrates what much of special
education litigation is about these days. It’s not about services to the student. It’s about
attorneys’ fees.
The basic rule is that parents who prevail in a special education due process hearing are
entitled to then recover their attorneys’ fees. In this case, the parents won the due process
hearing with regard to some of the key issues. The district chose not to appeal the decision,
and thus was obligated to provide the relief that the hearing officer ordered. The subsequent
lawsuit, then, had nothing to do with services to the student. It was about how much the
lawyer should be paid.
The parents’ attorney, Dorene Philpot, sought recovery of fees in federal court in the amount
of $101,843.44. The district was not willing to fork over that amount, and thus the case
ended up in front of Judge Marcia Crone.
Copyright © 2017 Law Dawg's Ed Daily, All rights reserved.
Judge Crone held that the parents had indeed “prevailed” in the hearing and thus, were
entitled to recover attorneys’ fees. But she reduced that award from $101,843 to $6,500. In
part, this was based on a finding that the reasonable hourly rate was $250 per hour, rather
than the $295 Ms. Philpot sought. But the main reason for the reduction was based on the
fact that the district had made a written settlement offer prior to the due process hearing that
offered more relief than the parents obtained from the hearing officer. Thus the judge
disallowed recovery of any fees after the date of the settlement offer. Not only did the district’s
offer provide more relief to the parent than she ultimately obtained, it also offered more to
the attorney. The offer included a payment of $10,000 to Ms. Philpot.
In short, the judge concluded that the parent—and her attorney—would have been better off
with the district’s settlement offer than with what they got from the hearing.
The case is a reminder of the wisdom of districts obtaining a cold hearted legal analysis of
their case before going to hearing. Here, the district anticipated some legal exposure and
wisely put an offer on the table in an effort to resolve the matter. Everyone would have saved
a lot of time and money if that offer had been accepted.
Nor did the district’s efforts to resolve this case end with that offer. The court noted:
Further, since this case was filed, the evidence and the record clearly show that the District
has acted in good faith and attempted multiple times to resolve this case, including engaging
in mediation and making repeated settlement offers after the case was filed in this court,
including substantial settlement offers for attorneys’ fees far above the $6,500 awarded by
the court.
FOOTNOTE: The court understands that Plaintiffs were not required to accept a settlement
offer. The settlement offers are referenced because Plaintiffs have repeatedly alleged in their
submissions to the court that the District has “stonewalled” them; however, Plaintiffs’
allegations of stonewalling are not supported by the evidence before the court.
The case is I.W. v. Hardin-Jefferson ISD, decided by the federal court for the Eastern District
of Texas on January 3, 2017.
DAWG BONE: A GOOD SETTLEMENT OFFER CAN SAVE TIME AND MONEY.
File this one under: SPECIAL EDUCATION
Copyright © 2017 Law Dawg's Ed Daily, All rights reserved.
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DOCKET NO. 009-SE-0916 STUDENT, § BEFORE A SPECIAL EDUCATION B/N/F PARENT § § VS. § HEARING OFFICER § HUNTSVILLE INDEPENDENT § SCHOOL DISTRICT § FOR THE STATE OF TEXAS DECISION OF THE HEARING OFFICER Statement of the Case
STUDENT, by next friend and parent (hereinafter “Petitioner” or “the student”), brought
a complaint pursuant to the Individuals with Disabilities Education Improvement Act (“IDEA”),
20 U.S.C. §1400, et seq., complaining of the Huntsville Independent School District (hereinafter
“Respondent” or “the district”).
Petitioner’s request for hearing was filed on September 13, 2016. Petitioner was
represented by Carolyn Morris, a lay parent advocate with Parent-to-Parent Connection in
Lancaster, Texas. Respondent was represented by Paula Maddox Roalson and Christian L.
Garcia with the offices of Walsh, Gallegos, Treviño, Russo & Kyle, P.C., in their office in
Houston, Texas, and Oscar G. Treviño from the Austin office in that law firm.
The matter came on for hearing in Huntsville on December 14, 2016, in the offices of the
district by agreement of the parties and order of the Hearing officer. At the close of the hearing,
Respondent moved for an extension of the decision deadline so that written closing arguments
could be filed; the parties agreed that the arguments would be filed on or before December 28,
2016, and agreed that the decision in the matter would be timely issued on or before January 13,
2017.
Petitioner alleged that the district was not providing the student with a free appropriate
education in the least restrictive environment. Petitioner also alleged that Petitioner was entitled
to an independent educational evaluation (“IEE”) at public expense. Petitioner later dropped its
claim for an IEE.
During the course of the proceedings, Respondent filed a motion for partial dismissal of
Petitioner’s original claims. In a previous request for hearing by Petitioner, the parties entered
into a settlement agreement on March ***, 2016, the student was *** on that date, and Petitioner
refused special education placement.
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The student *** in the 2016-2017 school year. The student was found to be eligible for
special education and placed in special education on September ***, 2016. Because all matters
previously in controversy were resolved on March ***, 2016, and Petitioner released all claims
against the district through that date, the Hearing Officer dismissed any claims arising on or
before March ***, 2016. Only claims arising after that date were considered at this hearing.
As relief, Petitioner is seeking:
1. 1:1 (one-to-one) services for the student in the school setting for all academic
instruction and *** services;
2. inclusion for the student in general education classes for more than ***% of the
instructional day;
3. a meeting of the student’s admission review and dismissal (“ARD”) committee to
consider the student’s ***, taking into consideration the student’s *** and all *** when
determining the student’s *** placement;
4. *** that run “parallel with the curriculum”; and
5. the provision of the student’s progress reports on the individual education plan
(“IEP”) every three weeks to the student’s parent.
At the beginning of the hearing, the parties sought introduction into evidence for a
number of exhibits. Respondent’s exhibits were admitted. Respondent objected to the
admission of any exhibits of the Petitioner because they were not disclosed to Respondent by the
due date for disclosure. Disclosure day for the parties was set by order of the Hearing Officer for
December 6, 2016. Petitioner’s advocate admitted exhibits to be disclosed to Respondent were
not received until December 8, 2016. None of Petitioner’s exhibits were admitted into evidence.
At the hearing, thirteen witnesses including the student’s parent were called to testify.
The district contends that Petitioner has unreasonably protracted resolution of the case
according to 10 Tex. Admin. Code §89.1185(m)(1).
Based upon the evidence and argument of the parties, the Hearing Officer makes the
following findings of fact and conclusions of law:
Findings of Fact
1. The student lives with the student’s parent and resides in the Huntsville
Independent School District. [Respondent’s Exhibit 18 and Transcript Page 205]
2. The student was born *** and is *** grade student eligible for special education
and related services based on educational disabilities of autism, intellectual disability, and ***.
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The student has received special education services from the district since ***. [Respondent’s
Exhibit 18 and Transcript Page 205]
3. The student’s intellectual functioning is in the moderate range of intellectual
disability and reads at the level of *** grade. The student’s abilities in math include *** and ***
and limited abilities to distinguish ***. The student can ***. [Respondent’s Exhibit 18 and
Transcript Pages 152-155]
4. The student was ***. The student did not *** until ***, and the student’s parent
agreed that the student would receive instruction in *** until an ARD committee was convened
to review evaluation data and determine special education eligibility. [Respondent’s Exhibits 11
& 18 and Transcript Pages 50-54 & 76-77]
5. An ARD committee for the student convened on September ***, 2016. The
student’s parent participated in the meeting. Educational evaluation and eligibility were
considered, and the committee requested consent from the parent for additional evaluations of
the student in speech/language/communication, assistive technology, ***, medical, assistive
technology, occupational therapy, in home and parent training, cognitive, adaptive, physical
therapy, counseling and emotional/behavioral areas. [Respondent’s Exhibits 3, 16 & 18 and
Transcript Pages 12-17, 27-28 & 55-58]
6. The student’s parent refused consent for all evaluations proposed by the
committee except for a *** assessment. The student’s parent requested an IEE in all other areas
proposed by the district. [Respondent’s Exhibit 18 and Transcript Pages 51-58]
7. The district wrote a letter to the parent refusing IEEs for the student on September
***, 2016, and the student’s parent later withdrew the request for IEEs. [Respondent’s Exhibit
22]
8. The ARD committee for the student developed an IEP for the student on
September ***, 2016, based upon information of the student’s present levels of performance.
The IEP included measurable goals for the student, ***, and ***. [Respondent’s Exhibit 18 and
Transcript Pages 6-10, 58-59 & 70-75]
9. The committee did not reach consensus in the ARD on September ***, 2016, on
the student’s educational placement. The district proposed a self-contained placement in ***
setting for core academic subjects and general education classes with support for three ***
classes. [Respondent’s Exhibit 18 and Transcript Pages 62-62 & 118-119]
Page 4 of 6
10. The district completed the additional *** assessment agreed to by the student’s
parent on October ***, 2016, and asked the student’s parent to attend another ARD committee to
review the assessment, update ***, and discuss ***. The student’s parent stated that the parent
would not be available for a meeting until January 2017. [Respondent’s Exhibits 28 & 29 and
Transcript Pages 118-119]
11. The ARD committee for the student on September ***, 2016, considered a
continuum for educational placements for the student. The district determined that the student
needed a placement in *** for core academic courses based upon available assessment and the
student’s present level of academic performance. The student’s parent insisted on a general
education placement for more than ***% of the time. The district personnel believed that
academic placement in general education classes for core subjects exceeded the student’s current
levels of educational performance and would be educationally inappropriate. The district
believed placement in general education would not allow the student to make appropriate
educational progress. [Respondent’s Exhibit 18 and Transcript Pages 41-46 & 64-67]
12. Witnesses at the hearing consistently and credibly testified that the student is
making academic progress in the current educational setting. [Transcript Pages 132-137, 142-
147, 157-162, 164-182 & 188-201]
13. Because the committee could not reach consensus with the student’s parent, the
committee offered the student’s parent an opportunity to submit a written statement of
disagreement, a recess of the committee, and a reconvening of the committee in ten days or less.
The parent agreed to the recess but before the committee could reconvene, the student’s parent
filed this request for a due process hearing. The committee has not been able to reconvene the
meeting. [Respondent’s Exhibit 18 and Transcript Pages 53-56 & 68-71]
14. After the request for hearing was filed, the district held a resolution session.
School district representatives attended together with the student’s parent and parent advocate.
The district offered the parent all relief requested in this due process hearing except for
placement in all general education classes. The parent instead requested placement for the
student in all general education classes for the full instructional day and reimbursement for
advocacy fees. [Respondent’s Exhibit 27 and Transcript Pages 78-81]
Discussion
The evidence at the hearing demonstrates a struggle in what the parent believes is
appropriate for the student and what the district believes.
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The law is clear, however, that the parent in this case bears the burden of proof to show
that the district is not offering an educational program which can confer both academic and non-
academic progress.
Petitioner failed to meet its burden.
Petitioner’s actions in pursuing its request for hearing, however, do not constitute
unreasonable protraction of litigation.
Conclusions of Law
1. The student is eligible as a student with educational disabilities for a free
appropriate public education under the provisions of IDEA, 20 U.S.C. §1400, et seq., 34 CFR
§300.301 and 19 T.A.C. §89.1011.
2. The Huntsville Independent School District is responsible for properly
identifying, evaluating, and serving the student under the provisions of IDEA, 20 U.S.C. §§1412
and 1414; 34 CFR §300.301, and 19 T.A.C. §89.1011.
3. The district has developed an educational program for the student allowing the
student an opportunity to make educational and non-educational progress in accordance with the
standard of Board of Education of the Hendrick Hudson School District v. Rowley, 458 U.S. 176
(1982), 34 CFR §300.552, and 19 T.A.C. §89.1055.
4. The district’s educational program is administered in the least restrictive
environment in accordance with Daniel R.R. v. State Board of Education, 874 F.2d 1036 (5th
Cir. 1989) and Cypress-Fairbanks ISD v. Michael F., 118 F.3d 245 (5th Cir. 1997), 34 CFR
§300.300, and 19 T.A.C. §89.1055.
5. The district has reliably sought to deliver the student’s educational program
developed under the standard of Michael F., supra, and Daniel R.R., supra in that the program is
individualized on the basis of the student’s assessment and performance; the program is
administered in the least restrictive environment; the services are provided in a coordinated and
collaborative manner by the key stakeholders; and positive academic and non-academic benefits
are demonstrated.
6 Petitioner failed to meet its burden of persuasion as established under Schaffer v.
Weast, 126 S.Ct. 528 (2005).
7. Petitioner’s claims have not been unreasonably protracted.
Page 6 of 6
ORDER
Based on the foregoing findings of fact and conclusions of law, IT IS HEREBY
ORDERED that all relief requested by Petitioner is DENIED and all claims of Petitioner are
DISMISSED with prejudice.
SIGNED this 13th day of January, 2017.
/s/ Lucius D. Bunton
Lucius D. Bunton
Special Education Hearing Officer