Keeping up with special education law is among the most challenging aspects of your job.
Certainly, the COVID-19 pandemic has raised a host of questions about how programs can comply with federal special education laws in a season of shuttered school buildings and remote learning—questions which, as of this writing, remain largely unanswered.
Even under normal circumstances, staying on top of “sped law” is difficult.
The regulations are already complicated, but court rulings on them—often running a dozen pages or more, steeped in specialized legal terminology—add another layer of complexity.
Regardless, you’re responsible for knowing whether your program is in compliance.
We at Pediatric Therapeutic Services (PTS) don’t claim to be “legal eagles.” We rely on experienced, reputable attorneys to interpret special education law for us, and we expect you do, too.
However, looking back at federal special education cases from 2019, we noticed some key themes we encourage you to think about. We’re not offering legal advice, but spotlighting some issues to which programs should pay particular attention.
Perform Your Child Find Duties in a Reasonable Time Frame
The Individuals with Disabilities Education Act (IDEA) mandates school districts identify and evaluate children who may need special education and related services. You know this requirement as Child Find. Several cases from 2019 considered this obligation.
In H.D. v. Kennett Consolidated School District, the U.S. District Court in eastern Pennsylvania rejected parents’ claims that their seventh-grade son’s declining grades, attendance, and behavior should have alerted the district to his need for special education.
The district eventually did conduct a section 504 evaluation when the student started ninth grade, after it received more information from the parents, teachers, and medical professionals. However, this response didn’t indicate that the district should have had a reasonable suspicion of the student’s need for special education earlier.
Among other questions, Spring Branch Independent School District v. O.W. addressed what constitutes a “reasonable” Child Find timeline. In this case, 99 days elapsed between notice of a student’s likely disability and a referral. During those months, SBISD attempted to improve the student’s behaviors via RtI (Response to Intervention), as Texas statute requires. Nevertheless, the Fifth Circuit found that this approach “was not a proactive step” toward compliance with Child Find duties, making the delay unreasonable.
What do these cases mean for meeting your Child Find obligations? On the one hand, don’t automatically refer students for IDEA evaluations. On the other, once you have reasonable suspicion, make the referral as soon as possible to avoid accusations of unreasonable delay.
Document All Communications With Your Students’ Families
Your program relies on families as key allies in helping students succeed. Naturally, you want to keep lines of communication open, but you must also record how often you use those lines.
In Renee J. v. Houston Independent School District, the Fifth Circuit ruled the district hadn’t denied a student his Free Appropriate Public Education (FAPE), despite four claims to the contrary by the parents. HISD produced documentation rebutting each allegation.
For example, the parents claimed the district gave insufficient notice of its ESY (Extended School Year) recommendation for their son, but the record shows “administrators made several unsuccessful attempts by email and phone messages” to confirm details. Another example: The parents claimed HISD turned a blind eye to the bullying their son suffered, leading to his school refusal behavior. Yet the student’s teacher “communicated with his parents nearly thirty times, attempting to convince them to return him to school.”
In Albright v. Mountain Home School District, a mother claimed her child was denied a FAPE, among other reasons, because the mother hadn’t been allowed meaningful input into forming the IEP. However, the Eighth Circuit noted “voluminous evidence in the record demonstrat[ing] Albright’s extensive involvement,” as well as her choice not to attend a key IEP meeting “despite the District’s efforts to persuade her to attend.”
In telling you to keep a record of communication with families, we know we’re not breaking news, but these cases serve as a reminder: Your careful and consistent documentation may save your district from legal disaster.
Meet the Increasingly Pressing Need for Trauma-Informed Services
Federal cases about special education laws in 2019 yielded outcomes on a wide range of subjects. One common feature in case after case, regardless of the specific legal question at stake, was how districts responded to students’ experience of trauma.
Sometimes the issue took center stage. In Hoover City Board of Education v. Leventry, an Alabama federal district court upheld a due process hearing officer’s judgment that a student diagnosed with PTSD and conversion disorder had been denied her FAPE when the district decided she was eligible for—but did not need—special education.
No one on the eligibility team doubted this student’s experiences—physical abuse, emotional neglect, sexual abuse—met the meeting state disability criteria, and adversely affected her education. Despite this, the team decided a 504 plan would meet her needs, largely because (quoting the hearing officer) the team “looked around and felt that since they did not conceive of any specially designed instructions that would apply, they felt she was not in need of ‘specialized instructions.’”
While the court commended the district’s efforts to support the student, it faulted the “circular reasoning” that kept her from receiving special education.
Perry A. Zirkel, University Professor Emeritus of Education and Law at Lehigh University, posts monthly updates about special education law on his blog (a resource anyone interested in the subject should consult). Commenting on this case, Zirkel noted, “[G]iven the mental health issues of the nation’s youth, including increasing incidence of severe trauma, this relatively narrow ruling is bound to have broader applications and variations…”
Growing awareness of trauma’s effects on students is driving increased demand for trauma-informed interventions. And now, when an entire generation of U.S. schoolchildren in special and general education will be processing the trauma of a school year cut short by COVID-19, you’ll want your program to serve them in healing ways.
Partner with PTS to Ensure Your Special Education Program’s Compliance
When you choose PTS to manage your special education program on a day-to-day basis, you’ll enjoy peace of mind knowing our Clinical Directors will monitor and ensure your program’s compliance with local, state, and federal special education laws.
We’ll also help you grow your program’s ability to provide trauma-sensitive services. For more information about how we can work with you to create supportive learning communities, please download your free copy of our e-book, Trauma-Informed Care: Key Principles and Best Practices for School Administrators.
Special education law is complicated, but its animating principle isn’t. It exists to ensure students with disabilities and disorders can exercise their right to access their education and pursue their goals.
You don’t have to be a lawyer to concur with that opinion!