Predictable or Unpredictable: Education-Related Updates From the Courts

Barbara J. Moore, Ed.D., CCC-SLP, BCS-CL,

ASHA Fellow

Professor/Program Director, Master of Science in Speech-Language Pathology

University of Southern California (USC)

Barbara.Moore@med.usc.edu Moore, 2020

Disclosures

• I, Barbara J. Moore, have written and spoken on topics related to the content of this presentation. For some of these publications and presentations I have received remuneration. I am receiving a stipend and travel support for this presentation.

Financial:

• I, Barbara J. Moore, have all worked in schools and university settings throughout my career and I am particularly interested in the legal and service aspects of speech-language pathology and special education services in a school setting. I am a strong advocate of children, professionals and families in these settings and believe in the legal foundation provided to deliver services.

Non-Financial

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LEARNER OUTCOMES

Learner will connect hearing officer rulings to one case on their caseload considering how the decisions potentially impacts their case management.

01Learner will discuss three applications of Endrew F. for IEP development for students receiving speech-language and/or audiology services

02Learner will construct two practice adaptations to address trends identified in judicial decisions.

03

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AGENDA

• Introduction, FAPE, LRE and Case Law Foundations

• Rowley and Endrew F. Decisions

• Endrew F. FAPE and LRE Interpretation

• Other Judicial Trends

• Speech-Language Practice Implications

• Questions/Closing

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Civil Rights and the Right to Appeal

• Special Education is a civil rights law

• A Child with a Disability (CWD) is a member of a protected class

• Due Process of law applies • Refers to procedures• Refers to hearing

• Realized in: Procedural Safeguards • guarantee parent involvement/student rights • timelines • consent • right to appeal

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Practice Guidance from Law• Statutory – a statute law or written law;

• federal (Public Law; United States Code) or state law

• Regulatory – a law promulgated by an executive branch agency (i.e. U.S. Department of Education)

• Code of Federal Regulations (CFR) or state regulations for implementing the federal or state law

• Case Law – practice guidance taken from judicial decisions; taken from the writings of the judges explaining their rulings and decisions

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Due Process Appeal Processes

• Resolution

• Mediation

• Due Process Hearing

• Appeal to U.S. District Court

• Appeal to U.S. Circuit Court

• Appeal to U.S. Supreme Court

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Moore & Montgomery (2018)

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Moore & Montgomery (2018)

Roots of Special Education in Civil Rights Legal Action: Brown v. Board of Education (1954)

• Ruling that “separate but equal” was inherently unequal and therefore unconstitutional

• Brown dealt with racial segregation, but laid the foundation for the education of children with disabilities and other disenfranchised groups

• Right-to-education issues are argued on the principles of equal protection under the law for all citizens

• Principles of equal protection and due process apply under the Fifth and Fourteenth Amendments apply to public education

• Equal opportunity, equal protection and the right to an education apply to all groups, regardless of race, color, creed, gender, disability or national origin

• Integration determined to be the only way to achieve equal opportunity for groups of diverse learners by ensuring that all students learn together

(Moore & Montgomery, 2018)

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This is a story about a girl named Amy and a boy named En(drew)

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Foundation Concepts in Special Education

• Zero Reject/Child Find• Full Educational Opportunity

• Free Appropriate Public Education (FAPE)

• Least Restrictive Environment (LRE)

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Free Appropriate Public Education (FAPE)

...the provision of special education and related services that:

• have been provided at public expense, under public supervision and direction and without charge

• meet the standards of the SEA

• include appropriate preschool, elementary or secondary education in the State

• provided in accordance with the IEP

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Free Appropriate Public Education (FAPE)

• Standard for judging appropriateness:• Is the program related to the child’s learning capacity?

• Is the program specially designed for the child’s unique needs and not merely what is offered to others?

• Is the program reasonably calculated to confer educational benefit? (Rowley Standard)

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Least Restrictive Environment (LRE)

1) to the maximum extent appropriate, children with disabilities… are educated with children who are not disabled

2) that special classes, separate schooling, or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aides and services cannot be achieved satisfactorily

(34 CFR SS300.550) p. 32

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Applying the Concepts

• LEGAL CONCEPTS:

• FAPE

• LRE

• OUTCOME of CONCEPTS:

• EDUCATIONAL BENEFIT

• RESULTS/EVIDENCE

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Four Main Reasons for Disputes (American Journal of Trial Advocacy, 2016, Vol.40)

1. Identification and eligibility determination

2. Types of special education and related services that a student may require

3. Whether the school program can accommodate the programs recommended for the child

4. Parent concerns that the class recommended will not be able to provide an educational environment that will yield educational benefits

(p. 357)

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Deciphering What Is “Appropriate” When Every Student Is Different (American Journal of Trial Advocacy, 2016; Vol. 40)

“….a school does not have to cure a child of his affliction, nor do the accommodations they implement even have to work. The reason for this is that the main tenants of the IDEA are based not on improved student performance, but on the creation of opportunity for those who would otherwise not be afforded an education. To this end, the IDEA cannot guarantee what the quality of education a child will receive, but does guarantee that all disabled children will be afforded support services and a public education.” (p. 354)

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The Rowley Standard

History• 1st case that the US Supreme Court

ruled on in relation to PL 94-142.

• BOARD OF EDUCATION OF THE HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, WESTCHESTER COUNTY, et al., Petitioners v. AMY ROWLEY, by her parents, ROWLEY et al. Respondent

• Argued before the Supreme Court, June 28, 1982

• Amy – kindergartener who was deaf; New York state; did not have a sign language interpreter in K – parents wanted it in 1st grade; district denied

• Trial Court and 2nd Circuit Court ruled that Amy was not being provided a FAPE; Supreme Court overruled

Ruling/Application• FINDING: Law does not require

districts to maximize the potential of disabled children

• “Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. …. We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.”

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Chief Justice Rehnquist (1982)

• wrote that it was not the goal of the Education of All Handicapped Children Act to provide “an equal educational opportunity” that is equitable to those provided to non-handicapped students

• did not find that the goal of the Education of All Handicapped Children Act was to provide “an equal educational opportunity” that is equitable to those provided to non-handicapped students

• a school district’s FAPE offer was “appropriate” when it is reasonably calculated to provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction

• Congress’ purpose in creating the FAPE standard was to confer “someeducational benefit upon the handicapped child.”

(American Journal of Trial Advocacy, 2016, p. 358)

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Application of Reasonable Calculation and Educational Benefit

Reasonable Calculation• Is based on procedural requirements of

IDEA and means –• The assessment was complete• The IEP team identified needs • Goals and objectives were established

in each need area• Services were offered to address goals

and meet needs• The IEP Team reviewed the child’s

progress and adjusted the child’s IEP if progress was not made and/or to address anticipated needs

Educational Benefit – No Specific Guarantee • How do you know if you provided Ed Benefit?

• Can you track the student’s story from the IEP paperwork?

• Can you demonstrate - on paper - how the student improved as a result of the interventions and programs provided?

• Can you show how the educational programming utilized current practices to meet the student’s identified needs?

• Can you match identified needs to goals and services and progress in those areas?

• Can you verify that the IEP was adjusted if the student wasn’t making progress or meeting goals?

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Administrative Law Judges’ Analyses Typically Included Reference to Rowley (note prior to Endrew F. decision)

In Board of Education of the Hendrick Hudson Central School Dist. v.Rowley (1982) 458 U.S. 176, 200 [102 S.Ct. 3034] (“Rowley”), the Supreme Court held that “the ‘basic floor of opportunity’ provided by the [IDEA] consists of access to specialized instruction and related services which are individually designed to provide educational benefit to” a child with special needs. Rowley expressly rejected an interpretation of the IDEA that would require a school district to “maximize the potential” of each special needs child “commensurate with the opportunity provided” to typically developing peers. (Id. at p. 200.) Instead, Rowley interpreted the FAPE requirement of the IDEA as being met when a child receives access to an education that is reasonably calculated to “confer some educational benefit” upon the child. (Id.at pp. 200, 203-204.)

From: Student v. William S. Hart School District, February 2013 OAH CASE NO. 2012120716

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Why did the Supreme Court take the Endrew F. case?

From Amy to Endrew

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Amy to Endrew

• Many cases are appealed to the Supreme Court – they don’t take all of them!

• Supreme Court takes cases that have different rulings in the various circuit courts on the same legal issues

• There had been many cases that had been appealed to the SCOTUS regarding FAPE and challenging Rowley prior to Endrew, but they were not heard

• Why this one?

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Variations in Court Interpretation

• Not disputed that schools are required to provide a FAPE

• Different interpretation as to how much benefit is required

• “some benefit” v “meaningful benefit”

• How much benefit is enough benefit?

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Did Endrew receive “some” Education Benefit? Key issue in the case of Endrew F:

How much “educational benefit” does the Individuals with Disabilities Education Act require public schools to provide to students with disabilities?

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Story of Endrew F

• Received education in the public schools in Colorado from 4 years to 4th grade

• Autism eligibility

• His teachers reported that he had a “sweet disposition” but nonetheless had some behavioral challenges. He would “scream in class, climb over furniture and other students, and occasionally run away from school.”

• Parents unilaterally placed in Firefly Autism House in Denver, CO, a school for students with autism

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Story of Endrew F – legal track

• 2010 – parents filed for due process seeking tuition reimbursement

• Administrative Law Judge denied request after 3 day hearing saying that Endrew has made “some measurable progress”

• Appeal to Federal District Court upheld Administrative Law Judge’s decision

• Rulings affirmed by 10th Circuit Court ruling that Endrew’s IEP was “substantively adequate”

• Parents argued in the appeal that the district failed to provide appropriate progress reporting and failed to assess behavior and write a plan to address behaviorMoore, 2020

Endrew F. by Joseph F. v. Douglas County School District

• Supreme Court of the United States (SCOTUS) Ruling March 2017

• Challenged the Rowley standard

• Extends and clarifies Rowley Standard that the IEP must be designed to confer educational benefit “in light of the child’s circumstances”

• De minimus standard not acceptable

• IEP design must be “appropriately ambitious” and provide the student “the chance to meet challenging objectives” (p. 992)

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Endrew F. - Additional Consideration for Unique Circumstances of the Child

Rowley did not provide concrete guidance with respect to a child who is not fully integrated in the regular classroom and not able to achieve on grade level. A child’s IEP need not aim for grade-level advancement if that is not a reasonable prospect. But that child’s educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives. This standard is more demanding than the “merely more than de minimis” test applied by the Tenth Circuit. It cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not. (emphasis added)

Supreme Court ruling March 2017

How does this change the Rowley standard?

Difference for students who are not contemplated to advance from grade to grade in the regular curriculum

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Question

What is the level of educational benefit that school districts must confer on children with

disabilities to provide them with the free appropriate public education guaranteed by the

Individuals with Disabilities Education Act (IDEA)?

Conclusion

UNANIMOUS DECISION FOR ENDREW F.

MAJORITY OPINION BY JOHN G. ROBERTS, JR.

To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably

calculated to enable a child to make progress appropriate in light of the child’s

circumstances.

https://www.oyez.org/cases/2016/15-827#!

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Chief Justice Roberts

"when all is said and done, a student offered an educational program providing 'merely more than 'de minimis' progress from year to year can hardly be said to have been offered an education at all.“

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Implications for SLPs out of Endrew F• Writing IEP goals that are the same over and over is NEVER justifiable

or defensible

• Requirements for reporting on Progress on Goals is not new, but it is the way to show that the student is making progress or not. If not, need to reconvene and address the lack of progress.

• Appropriate assessments and documentation

• Engagement in High Leverage Practices and EBP that can demonstrate that goals are appropriately ambitious (Dietrich, Kucharczyk and Brady, 2019)

• DOCUMENT, DOCUMENT, DOCUMENT!!!!!!

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Ed Benefit Analysis and Service Delivery Decision Making for Students with Significant Disabilities

• New standard requires that the IEP is “appropriately ambitious in light of the child’s circumstances”

• Same approach as for Rowley, but ensure that needs are identified and addressed

• Significant collaboration necessary with collaborative partners, especially behavior specialists, occupational therapists, psychologists, education specialists, instructional assistants

• Address Common Core Connectors/Essential Elements – Communication Competence is the foundation

• Technology access for all students, including and especially students with Complex Communication Needs (CCN)

• Documentation critical and progress reporting, required an important. Adjust goals and services if student is not making progress.

• ASSESSMENT is the foundational key!

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High Leverage Practices (HLP)

• Collaboration

Decisions and actions to engage team collaboration and promotion of family engagement.

• Assessment

Decisions and actions to ensure multiple sources have provided valid information and ongoing progress monitoring conducted and analyzed for decision making.

• Social/emotional/behavioral

EBPs have been identified and planned to promote positive behavior and social interactions while minimizing interfering behavior.

• Instruction

Instructional practices chosen to address long-and short-term goals using strategies and EBPs specific to the educational setting and student needs and strengths. Instructional designs are based on ongoing analysis of data.

(Dieterich, Kucharcyzk & Brady, 2019)

McLeskey, et al (2017).

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SCOTUS gives deference to the role of school officials

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(c) The adequacy of a given IEP turns on the unique

circumstances of the child for whom it was created. This

absence of a bright-line rule should not be mistaken for “an

invitation to the courts to substitute their own notions of

sound educational policy for those of the school authorities

which they review.” Rowley, 458 U. S., at 206. At the same

time, deference is based on the application of expertise and

the exercise of judgment by school authorities. The nature of

the IEP process ensures that parents and school

representatives will fully air their respective opinions on the

degree of progress a child’s IEP should pursue; thus, by the

time any dispute reaches court, school authorities will have

had the chance to bring their expertise and judgment to bear

on areas of disagreement. See §§1414, 1415; Rowley, 458 U.

S., at 208–209. At that point, a reviewing court may fairly

expect those authorities to be able to offer a cogent and

responsive explanation for their decisions that shows the IEP is

reasonably calculated to enable the child to make progress

appropriate in light of his circumstances.

4 ENDREW F. v. DOUGLAS COUNTY SCHOOL DIST.

Pp. 15–16

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Endrew F. Impact• Write into the IEP how you are designing an educational program

that:• IS REASONABLY CALCULATED TO ENABLE THE STUDENT TO MAKE PROGRESS

AND APPROROPRIATELY AMBITIOUS IN LIGHT OF THE STUDENT’S CIRCUMSTANES

• PROVIDES THE STUDENT THE OPPORTUNITY TO MEET CHALLENGING OBJECITVES.

• Lawyers advise that assessment is the key!!!

• Connecting the dots between assessment -> goals -> program and services

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ALJ Analyses post Endrew F.(Office of Administrative Hearing (OAH), Consolidated Cases, Parent on Behalf of Student v. Lompoc Unified School District, Case Numbers 2019040859 and 2019070446, Decision Issued January 2, 2020)

A free appropriate public education is defined as special education and related services that are available, at no charge, to an eligible child who meets state educational standards. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.) Parents and school personnel develop an IEP for an eligible student based upon the requirements of state law and the IDEA. (20 U.S.C. §§ 1401(14) and (26), 1414(d)(1)(A); Ed. Code, §§ 56031,56032, 56345, subd. (a) and 56363 subd. (a); 34 C.F.R. §§ 300.17, 300.34, 300.39 (2010); Cal. Code Regs., tit. 5, § 3001, subd. (p).)

In general, a child eligible for special education must be provided access to specialized instruction and related services which are individually designed to provide educational benefit through an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. ( Board of Education of the Hendrick Hudson Central School District v. Rowley (1982) 458 U.S. 176, 201 [102 S.Ct. 3034, 73 L.Ed.2d 690] ( Rowley ); Endrew F. v. Douglas County School Dist. (2017) 580 U.S. ____ [137 S.Ct. 988, 1000]; E.F. v. Newport Mesa Unified School Dist. (9th Cir. 2018) 726 Fed.Appx. 535.) “Related services” are transportation and other developmental, corrective, or supportive services that are required to assist the child in benefiting from special education. (20 U.S.C. § 1401(26); 34 C.F.R. § 300.34 (2010); Ed. Code, §56363, subd. (a).) Moore, 2020

Considerations

Think about a student or students you know and how Endrew F applies to the case. Share with your neighbor.

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Other Areas of Litigation

• Autism

• Transition

• Preschool

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Major Area for Potential Litigation: Transition

• Transition• Infant -> Preschool

• Preschool -> Elementary

• Elem -> Secondary

• Secondary -> Post-Secondary

• Any significant change in placement

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Sacramento City School Dist. v. Rachel H. (Ninth Circuit, 1994)

• Four-factor balancing test to consider when determining appropriate placement:

1. The educational benefits of full-time placement in a regular class

2. The nonacademic benefits of such a placement

3. The effects of the student on the teacher and other children in the class

4. The cost of a regular education placement with appropriate supplementary aids and services

• Theme of inclusion cases: • School districts bear the responsibility of demonstrating that a

less restrictive environment cannot work rather than arguing for more restrictive placement without first attempting the

less restrictive enviornmentMoore, 2020

Major Area for Potential Litigation: Preschool• OSEP 2017 Dear Colleague Letter re Preschool Inclusion

• ALL LRE requirements apply to preschool – need to consider full continuum of placement options

• Preschool must have opportunities for general education

• Rachel H. 4 part balancing test (9th Circuit -1994)

• Have a specific and overt discussion about the offer and document the discussion/rationale (per Endrew F.)

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District offer of FAPE must be specific!Union School District v. Smith (9th Circuit 1994) 15 F.3d 1519; 20 IDELR 987

• Lesson: Districts must make a specific written offer of placement

• In this case the district did not make a formal offer because in verbal discussions, the parent indicated an unwillingness to consider the placement. However, the court found that due to the prior written notice provisions of the law, the districts must make a formal offer in order for the parent to have something to consider. If the parent rejects the offer, then the district can go further, but failure to provide the offer in writing also eliminates the district’s opportunity to defend this offer, and denies the parent meaningful participation in the IEP.

• NOTE: This is why we don’t “tour” or let parents pick a program. OK to visit after we have made the district offer.

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Major Area for Potential Litigation: Preschool

• Transition from Part C -> Part B

• R.E.B. v State of Hawaii Dept of Ed (9th Circuit)

• Failure to address transition from NPS to Public School denial of FAPE

• Student v Los Angeles Unified School District (OAH 2013)

• District offered group therapy 2x week for speech/language

• Student received 1:1 – 60 minutes 2x weekly under Part C

• Judge upheld District’s offer; Services do not have to match intensity of Part C

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Major Area for Potential Litigation: Preschool

• Big Reminders:

• No distinction for preschool v school-age for LRE

• IEP goals drive the placement

• Not based on what’s available in the district

• Connect the dots in the IEP (like always for everyone!)

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Strategies for Collaborative Partnerships with Families

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Ensuring Parent Participation

• Provide parent with sufficient advance notice on IEP meeting notice Indicate purpose, time, and location Indicate who will be in attendance

• Schedule at a mutually agreed upon time and place

• Employ alternative methods for parent participation

• Arrange for an interpreter if necessary, and provide rights in the parent’s primary language. AND DOCUMENT THAT THIS WAS DONE!

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Strategies for IEPs

• All IEP members know their role – who will take notes, etc.

• Have an agenda –• review with parents at beginning of meeting -• ask the parent what they want to discuss and

then tell them when that will happen in the agenda

• Put a beginning and ending time on the meeting notice, and stick to it!

• All IEP members should be there for the whole meeting. (This is hard! Know restrictions to the excusal process.)

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Strategies for IEPs

• Take a break if it gets tense

• Remember that it’s OK for parents to ask questions – document questions and document the response

• Don’t read reports. Be clear and efficient in reporting. If you can get report to parents ahead of time, do it.

• Ongoing communication with parents throughout the year and prior to the meeting makes meetings go smoother.

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Costly IEP Mistakes

• Writing the same goals over and over.

• No progress on the goals and no meeting or adjustment to service

• Missing timelines

• Failure to have the appropriate people at the IEP

• Changing service delivery without an IEP (even if it means giving MORE service or you think you are addressing a parent concern)

• Lack of documentation of parent involvement

• Failure to send a Prior Written Notice (PWN)

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What Can You Do???

• Documentation: Objective, Subjective

• Compliance

• Utilize research-based strategies

• Keep a professional portfolio

• Utilize a variety of service delivery models

• Be sure to collaborate with team members

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In Closing….

• Due process cannot be totally avoided

• But there are some strategies to both help you have a good solid case, defending what you are doing, and also to avoid/manage conflict

• Whatever you do, don’t let it get you down

• Continue to enjoy your work and the students you serve

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It's not only moving that creates new starting points. Sometimes all it takes is a subtle shift in perspective, an opening of the mind, an intentional pause and reset, or a new route to start to see new options and new possibilities.

Kristin ArmstrongMoore, 2020

THANK YOU FOR INVITING ME AND FOR ALL YOU DO FOR STUDENTS!!!

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ReferencesDieterich, C.A., Kucharczyk, S. and Brady, K.P. (2019). Clarifying FAPE under the IDEA post-Endrew F.: Legal and practical guidelines for school administrative personnel. Journal of Special Education Leadership 32; 72-85.

Endrew F. v. Douglas County School Dist. RE-1 (No. 15-827, March 22, 2017)

Endrew F. v. Douglas County School District." Oyez, 18 Oct. 2017, www.oyez.org/cases/2016/15-827#!.

Howell, H. T. (2016) Endrew F. v. Douglas County School District: How Much Benefit Is Enough When Evaluating the Educational Needs of Disabled Students in Federally-Funded Public Schools? American Journal of Trial Advocacy, 40; 347-393.

McLeskey, J., Barringer, M.-D., Billingsly, B., Brownell, M., Jackson, D., Kennedy, M., Lewis, T., Maheady, L., Rodriguues, J., Scheeler, M.C., Winn, J. Ziegler, D. (2017). High leverage practices in special education. Arlington, VA: Council for Exceptional Children & CEEDAR Center.

Moore, B. (June 1, 2019). The Endrew F. Standard: Ensure that an IEP Complies. The ASHA Leader, 24 (6): 34-35.

Moore, B. & Montgomery, J. (2018). Speech-language pathologists in public schools: Making a difference for America’s children. Austin, TX: Pro-Ed.

SCOTUSblog.com http://www.scotusblog.com/case-files/cases/endrew-f-v-douglas-county-school-district/

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