NLDline
Subj: THE SPECIAL ED ADVOCATE,
JANUARY 5, 2000 (V. 3, NO. 1)
Date: 1/5/00 6:43:07 PM Pacific Standard Time
From: webmaster@wrightslaw.com (Wrightslaw / The Special Ed Advocate)
Sender: owner-special-ed-advocate@wrightslaw.com
To: special-ed-advocate@wrightslaw.com
The Special Ed Advocate
The Online Newsletter About
Special Education and the Law
January 5, 2000 Vol. III, No. 1
Visit us today at
http://www.wrightslaw.com
===================
Welcome to the first issue of the new millennium. We begin the new year, the new decade,
the new century, the new millennium with no Y2K or other big glitches.
Now it's time to learn more about special education law and advocacy. We hope to make
Wrightslaw and The Special Ed Advocate better with more useful articles, letters, and
cases. As you continue to learn, you will
be in a stronger position to advocate for children with disabilities.
We start the new year with a bang! In this issue, you'll find three NEW decisions from
Courts of Appeals and LEGAL LESSONS, a new column and learning tool for effective
advocates.
Please invite your friends and colleagues to subscribe to The Special Ed Advocate. We have
a form that makes it easy to subscribe (see instructions at end of this newsletter).
For an easy to read, printer friendly copy of this newsletter, go to
http://www.wrightslaw.com/advoc/nwltr/2000/nl_00_0105.htm
============
1. IT'S NEVER TOO EARLY TO PREPARE FOR AN IEP MEETING! (#1 DOWNLOAD FOR DECEMBER)
2. THREE NEW DECISIONS FROM COURTS OF APPEALS
3. ADAMS v. STATE OF OREGON (9th Cir. 11/29/1999) (Autism, FAPE, reimbursement, ESY)
4. METROPOLITAN BD OF EDUC. v. GUEST (6th Cir., 10/06/99) (Autism, procedural violations
and damages, administrative exhaustion)
5. LINDA W. v. INDIANA DEPT. OF EDUCATION (7th Cir, 12/22/1999) (Dyslexia, tuition
reimbursement, prevailing party)
6. LEGAL LESSON AND ASSIGNMENTS
7. DIGITAL DOWNLOADS FROM FATBRAIN
8. SUBSCRIBE NEWSLETTER
9. CONTACT US
=============
1. IT'S NEVER TOO EARLY TO PREPARE FOR AN IEP MEETING!
"Your Child's IEP: Practical and Legal Guidance for Parents" was the #1 download
in December. This article was revised to be consistent with the new IDEA Regulations.
"Your Child's IEP" was downloaded 3,753 times between December 13 and December
31, 1999. The article has been downloaded 920 times since January 1 - that's nearly 5,000
downloads in three weeks. Amazing!
Start preparing for your next IEP meeting NOW! Download, print and read "Your Child's
IEP" at
http://www.wrightslaw.com/advoc/articles/iep_guidance.html
and the companion article, "Understanding Tests and Measurements."
http://www.wrightslaw.com/advoc/articles/tests_measurements.html
Read and re-read these two articles. At the next IEP meeting, you'll be glad you did.
===============
2. THREE NEW DECISIONS FROM COURTS OF APPEALS
You will find links to three new cases in this issue of The Special Ed Advocate. Two cases
involve children with autism; one case involves a child with dyslexia.
The nature of the child's disability is rarely related to the law, legal analysis or
outcome of a case. For these reasons, you should read ALL cases, regardless of your
specific disability interest.
We suggest that you download and print these cases. Read the cases carefully. Make notes
in the margins. Use a highlighter. When you read case law, you'll understand the
underlying legal principles and issues. You'll also understand Pete's Maxim: "Law is
never black or white, but always written in shades of gray."
==================
3. ADAMS v. STATE OF OREGON (9th Cir. 11/29/1999) (Autism, FAPE, ESY, reimbursement)
Lucas is a two and a half year old child with autism. After extensive research, his
parents requested that the school provide an intensive program of Lovaas therapy.
The public school balked. Their consultant claimed that because Lucas was young (2.5 years
of age), intensive therapy (more than 2 hours a day) might damage him or exacerbate
symptoms related to autism.
IFSP: NEGOTIATIONS
(NOTE: IFSP is the acronym for Individualized Family Service Plan which is similar to the
IEP)
* * THE PARENTS' POSITION * *
"Lucas' parents had thoroughly investigated autism and concluded that Lucas would
benefit most from an intensive 40 hour per week, one-on-one program of applied behavioral
analysis modeled after the research of Dr.
O. Ivar Lovaas . . . They clearly wanted to use the intensive 40 hours per week
Lovaas-type method of discrete trial training."
* * THE SCHOOL'S POSITION * *
"However, the IFSP team did not want to be limited only to discrete trial training,
although that methodology would be implemented as part of the overall program. Members of
the IFSP team felt that the training employed in the Lovaas method may have been too
punitive and intense for Lucas in light of his age and tolerance . . . [they] questioned
some of Lovaas' methods, because the studies did not take into account functional ways to
analyze behavior."
* * THE SCHOOL'S BELIEFS: INTENSIVE THERAPY DAMAGES AUTISTIC CHILDREN * *
The school's autism consultant "recommended to the IFSP team that they reduce the
intensity of Lucas' program to account for his youth . . . [she] questioned whether Lucas
could even tolerate 2.5 hours per day (or 10 hours per week), because he had difficulty
attending and staying at the table with that level of service."
At the due process hearing, she testified "He was often tired and uncooperative, as
any two-year old would be . . . Additionally, he often had tantrums when CDC staff worked
with him." She testified about her belief that "if Lucas received more intense
services, he might experience more severe behavior problems."
THE COMPROMISE
"The IFSP team, which included Lucas' parents, negotiated between 20 and 10 hours per
week for the IFSP, finally deciding that 12.5 hours per week would be sufficient."
"The parents agreed with the 12.5 hours per week of service, but expressed an
intention to supplement these services privately with 12.5 hours per week of a more
intensive program using Project PACE. The Adams
expressed satisfaction with the IFSP and did not ask for reimbursement for these
supplemental services when they signed the IFSP."
The parents "attempted to specify that the IFSP program to which they agreed employed
discrete trial training exclusively. [The school case] manager rejected this request,
because the IFSP team had agreed not to
identify a specific methodology or program, so as not to be limited to only discrete trial
training."
ESY: THE "SUMMER IFSP"
In June, another IFSP was drawn up which continued the same level of services (2.5 hours a
day, 5 days a week) until the end of July. Between July 26 and September 16, Lucas'
special education services would be reduced to 7.5 hours a week (2.5 hours a day, 3 days a
week) because of "staff vacations." The parents "agreed to the reduction
over the summer months" and made plans to pay for additional therapy by their private
tutors.
During this time, the parents arranged for the school staff to receive additional training
in discrete trial therapy. "However, the CDC staff did not attend the training, which
further upset Lucas' parents."
Finally, the parents requested a due process hearing, and asked to be reimbursed for the
costs of supplementing their son's special education.
AN APPROPRIATE PROGRAM: HOW MUCH IS ENOUGH?
"BASIC FLOOR OF OPPORTUNTY"
The Ninth Circuit wrote, "An appropriate early intervention program does not mean the
absolutely best or potential maximizing services for the child . . . states are only
obligated to provide "a basic floor of opportunity" through the IFSP,
individually designed to provide a developmental benefit to the infant or toddler with a
disability."
"MEANINGFUL BENEFIT"
". . . the more pertinent question [is] whether the IFSP was appropriately designed
and implemented so as to convey Lucas with a meaningful benefit. We do not judge an IFSP
in hindsight; rather, we look to the IFSP's goals and goal achieving methods at the time
the plan was implemented and ask whether these methods were reasonably calculated to
confer Lucas with a meaningful benefit."
Using these standards, the Ninth Circuit concluded that the first IFSP was appropriate
because it "was reasonably calculated to develop Lucas and be responsive to his
individual needs."
WAS THE SUMMER IFSP BASED ON CHILD'S UNIQUE NEEDS?
Next, the Court analyzed the appropriateness of the "summer IEP" which reduced
the child's special education services from 12.5 to 7.5 hours. Was this IFSP sufficient?
Did this IFSP confer meaningful benefit?
"Neither party disputes Lucas' need for ESY services. At issue is how many hours of
service Appellees are required to provide. [The school supervisor] testified before the
hearing officer that the reduction in Lucas' service hours was not based on Lucas' unique
needs . . ."
Q: And did you consider that level of services to be enough to provide Lucas to make [sic]
meaningful gains?
A: I don't think in fact--I wasn't thinking in terms of whether Lucas was going to make
meaningful gains. The program was going on vacation and we were told that services would
be reduced."
The Court found "Clearly, the reduction in hours called for in the June 4 IFSP was
not linked to Lucas' individual needs. Rather, the reduction was a consequence solely of
the staff's vacation schedules. Regardless of the staff's summer plans, Lucas required a
minimum of 12.5 hours of one-on-one services, as agreed to in the prior IFSP."
CASE REMANDED
The Ninth Circuit found that the parents were entitled to full or partial reimbursement
for the cost of their son's education during the summer and remanded the case back to the
District Court with these recommendations about relief:
"To determine whether Appellants are entitled to full or partial reimbursement of the
$1500 they expended, the district court may consider the following factors, among others:
the existence of other, perhaps more appropriate, substitute placements, the effort
expended by Lucas' parents in securing alternative placements and the general
cooperative or uncooperative position of Appellees."
Download this case from the Wrightslaw Law Library at
http://www.wrightslaw.com/law/caselaw/9th_Adams_Oregon_99_1129.htm
================
4. METROPOLITAN BD OF EDUC. v. GUEST (6th Cir., 10/06/99) (Autism, LRE preference,
procedural violations and damages, administrative exhaustion)
In another case involving a child with autism, the 6th Circuit addressed these legal
issues:
* Was the IEP appropriate? Was the IEP "reasonably calculated to provide Joel with
educational benefits?"
* Did the school commit procedural violations? If so, did these violations cause
"substantive harm?"
After clarifying the legal issues, the Sixth Circuit remanded the case back to the
District Court with these instructions:
"On remand, the district court should clarify whether the procedural violations
caused substantive harm as its initial opinion implies and as the ALJ found. The district
court should also re-examine whether, in light of the administrative record and relevant
additional evidence, the IEP Metro Board proposed for Joel for the 1996-1997 school year
was reasonably calculated to afford educational benefit."
"If the district court finds that the procedural violations caused substantive harm,
or on any alternative grounds that the proposed IEP was not reasonably calculated to
afford education benefits, then the decision of the ALJ should be affirmed and
Defendants-Appellants Guests should be declared the prevailing party and receive statutory
attorney's fees."
http://www.wrightslaw.com/law/caselaw/6th_Metro_Guest_99_1004.html
================
5. LINDA W. v. INDIANA DEPT. OF EDUCATION (7th Cir, 12/22/1999) (Dyslexia, tuition
reimbursement, prevailing party)
On December 22, 1999, the Seventh Circuit issued an adverse decision in Linda W. v.
Indiana Dept. of Education, a tuition reimbursement case. This decision appears to be at
odds with the U. S. Supreme Court's 1993 decision in Florence County v. Shannon Carter.
Linda W. involved the school's failure to provide an appropriate education to a child with
dyslexia. The school proposed an IEP that was deficient. The hearing officer modified the
school's proposed IEP. On appeal, the second hearing officer modified the first hearing
officer's modifications. All parties assumed that if the public school's IEP was modified,
the public school could provide the child with an appropriate education.
The Seventh Circuit claimed that the deference they owed the District Judge meant they
could not overturn his decision. (The District Judge advanced a similar argument about the
deference he owed both hearing officer's conclusions).
"REIMBURSEMENT IS NOT AN ENTITLEMENT"
The Seventh Circuit criticized the parents for relying on Burlington (the 1985 decision by
U. S. Supreme Court about tuition reimbursement), ruling that "reimbursement is not
an entitlement," and added a new factor that Judges in the Seventh Circuit should
consider in tuition reimbursement cases:
"Parents thus must establish more than that the school district's original plan is
deficient . . . Parents not only must show that placement in a private school is
"proper under the Act" but also must persuade a district court to exercise its
discretion to provide reimbursement."
The Seventh Circuit was concerned about an "exodus" from public schools and the
costs of such an exodus.
SEVENTH CIRCUIT IGNORES U. S. SUPREME COURT DECISION IN CARTER
Florence County v. Shannon Carter (1993) is the most recent tuition reimbursement decision
by the U. S. Supreme Court. The Seventh Circuit failed to reference Carter, even though
the high court addressed the "costs" and "financial ruin" arguments.
In Carter, Justice O'Connor wrote:
"The school district also claims that allowing reimbursement for parents such as
Shannon’s puts an unreasonable burden on financially strapped local educational
authorities."
"There is no doubt that Congress has imposed a significant financial burden on States
and school districts that participate in IDEA. Yet public educational authorities who want
to avoid reimbursing parents for the private education of a disabled child can do one of
two things: give the child a free appropriate public education in a public setting, or
place the child in an appropriate private setting of the State’s choice. This is
IDEA’s mandate, and school officials who conform to it need not worry about
reimbursement claims."
Download the Linda W case from the Wrightslaw Law Library at
http://www.wrightslaw.com/law/caselaw/7th_LindaW_Indiana_99_1222.htm
The Carter Links page, which includes links to the Carter decisions and the transcript of
Oral Argument, is at
http://www.wrightslaw.com/law/caselaw/Carter_Links_Page.html
=============
6. LEGAL LESSONS
The decision in the Linda W. case is an example of Pete's Maxim: "Law is never black
and white."
ASSIGNMENT #1: APPEALS PROCESS
To learn more about conflicting case law, download, print, and read the Seventh Circuit's
decision in Linda W.
http://www.wrightslaw.com/law/caselaw/7th_LindaW_Indiana_99_1222.htm
AND the Sixth Circuit's decision in Metro v. Guest
http://www.wrightslaw.com/law/caselaw/6th_Metro_Guest_99_1004.html
AND the Ninth Circuit's decision in Adams v. Oregon.
http://www.wrightslaw.com/law/caselaw/9th_Adams_Oregon_99_1129.htm
Print these cases and study them. Why did the Seventh Circuit claim they were unable to
overturn the lower court's decision? (If Courts are unable to reverse decisions of lower
courts, wouldn't the appeals process be meaningless?)
How did the Sixth and Ninth Circuits describe their role in an appeal? What did they say
about the standard of review? Is their position different from that taken by the Seventh
Circuit in the Linda W. case?
ASSIGNMENT #2: THE DECISION MAKER
Now go back and read these three decisions again. Read Chapter 5 (Tactics & Strategy:
Overview) and Chapter 6 (Assumptions) in WRIGHTSLAW: TACTICS & STRATEGY MANUAL.
How would you describe the beliefs of the decision-making Strangers who wrote each of
these decisions? Were these Strangers sympathetic to the parents and child? Indifferent?
Hostile?
Do you think fears affected the Linda W. decision? If so, what were these fears?
You can order the TACTICS & STRATEGY MANUAL from the Wrightslaw Store at
http://www.wrightslaw.com/store/index.html
==============
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================
8. SUBSCRIPTION INFORMATION
The Special Ed Advocate is a free online newsletter about special education legal issues,
cases, tactics and strategy, effective educational methods, and Internet links.
As a subscriber to The Special Ed Advocate, you will receive announcements and
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===========
9. CONTACT INFORMATION
Pete and Pam Wright
c/o The Special Ed Advocate
P. O. Box 1008
Deltaville, VA 23043
Phone: 804-257-0857
Website: http://www.wrightslaw.com
Email: webmaster@wrightslaw.com
The resources at this website are copyrighted by the authors. They may be used for
non-commercial purposes only. They may not be redistributed for commercial purposes
without the express written consent of Peter W.
D. Wright.
It is not necessary to obtain our consent to link to our website or copy, print and
distribute our articles and newsletters for nonprofit purposes so long as the material is
reproduced in its entirety and credit is given to Pete and Pam Wright and
"wrightslaw" including the URL -
http://www.wrightslaw.com
Copyright 2000, Peter W. D. Wright and Pamela Darr Wright. All rights reserved.
END