Adequacy of the IEP for the period from December 1998 to December 1999.
The Parents contend that the IEP from December 1998 to December 1999 is affected by a number of procedural deficiencies that collectively amount to a denial of FAPE. Not all procedural violations result in the denial of FAPE:
[P]rocedural violations stemming from requirements not having to do with parental involvement in the evaluation or IEP process … must imperil the substantive goals of the Act [to constitute a denial of FAPE]….[A]ll procedural violations do not establish a denial of [FAPE] …, only those violations that are sufficiently harmful and serious.
Hoffman v. East Troy Community School District, 38 F.Supp.2d 750, 761 (E.D. Wis. 1999).
The first alleged procedural flaw is that the IEP was formulated without the benefit of an accurate assessment of the Student’s intellectual functioning. As part of the Student’s triennial eligibility re-evaluation in December 1998, the District administered the WISC-III test (Wechsler Intelligence Scale for Children-III). The test results were significantly lower than the results recorded on a comparable test three years before. The person administering the test opined that the test results were not valid "due to inappropriate testing conditions and behaviors", and that the Student’s actual scores would be about 20 points higher. Such a higher score would have placed the Student in the low average to average range.
The District also administered the WIAT Screener (Wechsler Individual Achievement Test). The Student scored in the low average range for reading and math, which was much lower than his test from three years before, reflecting a 2.5 to 3 year delay in Basic Reading and Math Reasoning skills. These scores were not inconsistent for a child with low average to average intelligence. The Student scored high average on spelling tasks, which was an improvement of his score from three years before.
The consensus view of the IEP team was that the test results on the WISC-III were invalid due to testing conditions. The team regarded the WIAT Screener results, however, to be reasonably reliable. Nonetheless, the IEP team did not regard the Student’s lower scores on Basic Reading and Mathematical Skills to indicate that he was not capable of participating at grade level. Rather, the team considered the lower scores to be a reflection of how the Student’s behaviors had adversely affected his learning. Consequently, the IEP's annual goals were directed to improvement of behaviors, on the view that if behaviors improved, academic improvement would follow.
I reject the Parent’s contention that the IEP was based upon an inaccurate or incomplete assessment. The IEP team reasonably accepted the test administrator’s assessment that the WISC-III scores were not reflective of the Student’s true levels, which were likely in the low average to average range. Indeed, a subsequent intelligence-measuring test administered at the behest of the Parents in January 2000 showed an equivalent IQ in the low average range, just as the person who administered the WISC-III a year earlier had reasoned.
The Parents next contend that the Student’s behavioral intervention plan (BIP) was inadequate because the District failed to conduct a functional behavioral assessment (FBA). The Parents assert that an FBA would have provided information essential for developing appropriate intervention strategies.
The IDEA requires an FBA only in limited circumstances. See 34 C.F.R. § 300.520(b)(i). Those circumstances do not exist here. Thus, there was no procedural violation for failing to do an FBA. Moreover, throughout the 1998-1999 academic year, the District employed the methodology of an FBA in making changes to the Student’s BIP. There was no procedural violation with respect to the development and changes to the BIP.
The Parents next contend that the IEP does not include an adequate description of the Student’s present level of performance. IEP’s should contain a statement of the child’s "present level of educational performance, including [h]ow the child’s disability affects the child’s involvement in the general curriculum." 34 C.F.R. § 300.347(a)(1)(i). With respect to the Student’s behavioral performance, the stated "present level of educational performance" in the IEP amply satisfies this regulatory requirement. With regard to his academic levels, the stated present level of performance provided a general description without reciting any objective data. However, the Parents were aware of the results of the WIAT Screener measuring the Student’s academic levels of performance. The absence of a recitation of the same scores in the IEP, even if a procedural flaw, was not prejudicial. Doe v. Defendant I, 898 F.2d 1186 (6th Cir. 1990).
The Parent’s also complain that the annual goals and short-term objectives are inadequate. The IEP sets forth three annual goals, all pertaining to behavioral matters. Short-term objectives are identified under each goal. Annual goals and short-term objectives should be "measurable" in order to "enable parents, students, and educators to monitor progress during the year". 34 C.F.R. Part 300, App. A, Q.1 (64 Fed. Reg. 12471). The substantial evidence showed that the Student regressed with respect to all three goals and most of the short-term objectives. Just as his regression was measurable, any progress would have likewise been measurable. The annual goals and short-term objectives were sufficiently measurable and thus in procedural compliance with regulatory standards. 34 C.F.R. § 300.347(a)(2).
Further, in evaluating the procedural adequacy of the annual goals and short-term objectives, it is significant that these were developed though the consensus of the IEP team, with full participation by the Parents. There is no evidence that any members of the IEP team expressed any concern that the goals and objectives were unreasonable or not sufficiently definite to allow measurement of the Student’s progress. Such full participation during the formulation of the IEP is designed to advance the substantive goals of the IEP. Hoffman, 38 F.Supp.2d at 761. I conclude that the IEP process in December 1998 advanced these substantive goals.
The Parents contend also that the IEP is procedurally deficient in that it refers to an "accommodation form" specifying the modifications to be made to the Student’s academic program, but that such a form is not itself physically attached to the IEP. This contention exalts form over substance. The District made numerous accommodations under a comprehensive written accommodation plan that had been physically attached to the previous IEP. Even if the failure to attach the "accommodation form" to the current IEP amounted to a procedural violation, it resulted in no harm. Id.
The Parents contend also that the District denied FAPE by failing to adhere to the IEP covering the period from December 1998 to December 1999. The Parents point to instances in which the staff did not give complete effect to certain provisions of the BIP. A school district must "[p]rovide special education and related services to a child with a disability in accordance with the child's IEP". 34 C.F.R. §300.350(a)(1). The District bears the burden of demonstrating that it has provided such special education and related services. Madison Metropolitan School District, LEA-98-054 (LEA Wis. 1999). To show deficient implementation of an IEP requires a showing of more than a de minimus failure to implement all the elements of that IEP. Houston Independent School District v. Bobby R., 200 F.3d 341 (5th Cir. 2000). Rather, failure to implement substantial or significant provisions of the IEP must exist, such that the educational benefit that the IEP is designed to achieve is significantly or substantially diminished. Id.
The District has met its burden. The District substantially and continuously implemented all material provisions of the IEP and BIP. The instances cited by the Parents were isolated and irregular occurrences (Parents’ principal brief, pp. 41-42). Viewed collectively, they do not amount to a substantial failure to implement the IEP or BIP.
Adequacy of the draft IEP for the proposed Washington School placement.
The Parents challenge on numerous grounds the draft IEP discussed in the IEP team meeting on October 11, 1999.
The Parents contend that the District completed the IEP before the meeting. Generally, a district may not arrive at an IEP meeting with the IEP already completed. See 34 C.F.R. 300, App. A, Q32. A district may, however, bring a draft of all or part of an IEP to an IEP meeting. Id. If a district does so, it must ensure that "there is a full discussion with the child’s parents, before the child’s IEP is finalized, regarding drafted content and the child’s needs and the services to be provided to the meet those needs." Id.
I find that the District came to the IEP meeting with a true draft IEP, and that the Parents and other team members engaged in discussion regarding its provisions. The Parents objected to aspects of the draft IEP, and the participants discussed these objections. These substantive discussions are not vitiated simply because the District did not change the draft in response to the Parents' objections.
The Parents contend further that the District is denying FAPE to the Student during the stay-put placement because it has not provided a copy of the draft IEP to the Student’s stay-put teacher. This contention has no merit. The Student’s present educational program is being conducted under an agreed stay-put placement, not under the draft IEP.
I reject also the Parents’ contention that the District is denying FAPE to the Student during the stay-put placement because it has not provided a copy of the IEP for the period December 1998 to December 1999 to the stay-put teacher. The Parents have never amended their due process hearing request to assert that the negotiated stay-put placement fails to provide the Student an appropriate educational benefit, and thus the appropriateness of the program provided in the negotiated stay-put placement was not litigated at the due process hearing. Indeed, such a contention would have been somewhat inconsistent with the primary component of the Parents’ requested relief that the Student’s placement be changed to a program substantially the same as the program in the current stay-put placement. I reject the Parents’ contention that the Student has been denied FAPE by the program being implemented under the negotiated stay-put placement.
The Parents also challenge the procedural adequacy of the draft IEP. Although the draft IEP was never finalized, the District predicated the proposed placement at Washington School on the Student’s present level of educational performance (PLP) and the annual goals and short-term objectives set forth in the draft. The Parents may thus appropriately challenge the procedural adequacy of the PLP and goals and objectives even though the draft IEP was never finalized.
The Parents contend that the stated PLP is flawed because it is based upon invalid test results, namely the achievement tests administered by the District in the Student’s home on September 21, 1999. The District believed that the results of those tests did not accurately reflect the Student’s true levels of performance because of cuing and encouragement provided by the Parents during the testing. The draft's PLP states that the Student’s "independent levels are closer to half of these tested levels." There is no reliable evidence that this assessment is erroneous. Indeed, the Parents acknowledge that the Student has academic deficits in a number of areas. (See, e.g., Tr. #9, 2/22/00, p 32). There is insufficient evidence to support a finding that the stated PLP was not reasonably reliable.
The Parents also challenge the goals and short-term objectives in the draft IEP. At the IEP meeting on October 11, 1999, the Parents voiced no objections to the four academic goals, but did an express objection to the behavioral goal. (Tr. #7, 2/14/00, pp. 100-101). The Parents now claim that all the goals and objectives are procedurally deficient for a variety of reasons. I reject the Parent’s contentions. I find all five goals to be reasonable and also sufficiently measurable. I find also that the short-term objectives stated under each goal are not inappropriate and would "enable parents … and educators to monitor progress during the year, and, if appropriate, to revise the IEP consistent with the student’s instructional needs." 34 C.F.R. 300, App. A, Q1 (64 Fed.Reg. 12471). The annual goals and short-term objectives meet the standards of 34 C.F.R. § 300.347(a).
Further, even if all the claimed procedural deficiencies in the draft IEP were cured, the core of the IEP would remain unchanged, so that the District’s proposed placement at Washington School would not have changed. Since the IEP was never finalized and thus not implemented, prejudice from the alleged procedural violations could result only if the deficiencies affected the proposed placement. There is no basis to conclude that the claimed procedural deficiencies affected the District’s proposed placement at Washington School, so no harm or prejudice results from the claimed procedural violations. Hoffman.
Proposed Placement at Washington School.
The Parents contend that the District's proposed placement at Washington School is not the least restrictive environment (LRE). They contend that the true LRE placement would closely resemble the Student's current program under the negotiated stay-put placement. In that program, Ms. Costello provides one-to-one academic and social skills instruction to the Student at an off-campus site, with the assistance of an aide. The Student also participates in one class per day in the regular education curriculum at [City] Middle School, in either band or physical education. The teacher's aide is present to assist the Student during his participation in these non-academic classes.
The IDEA requires that children with disabilities be provided a free appropriate public education (FAPE) in the least restrictive environment (LRE). The phrase "least restrictive environment" is a term of art that implements the Act's requirement that disabled children, to the maximum extent appropriate, be educated in a regular education classroom with children who are not disabled. 20 U.S.C. § 1412(a)(5)(A). The use of the word "restrictive" is somewhat of a misnomer, because LRE is unrelated to restrictions placed on students. The term "LRE" might have been more accurately coined as the "least segregated environment".
The IDEA thus expresses a "strong preference" for mainstreaming. Lachman v. Illinois State Board of Education, 852 F.2d 290 (7th Cir. 1988); see also Wis. Stat. § 115.79(3). Federal regulations implementing this strong preference require schools to "ensure [t]hat special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only if the nature and severity of the disability is such that education in the regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 34 C.F.R. § 300.550(b)(2).
Three standards have emerged in the federal circuit courts of appeal for evaluating whether a placement determination meets the LRE requirement. See Murray v. Montrose School District, 51 F.3d 921, n.11 (10th Cir. 1995). The Seventh Circuit has not identified a particular standard to be employed. Monticello School District No. 25 v. George L., 25 IDELR 48 (7th Cir. 1996).
The standard adopted by the Seventh Circuit's two neighboring circuits, the Sixth and Eighth, is set forth in Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983). See also A.W. v. Northwest R-1 School District, 813 F.2d 158 (8th Cir. 1987). Roncker sets forth a two-part test, the first part of which provides:
In a case where the segregated facility is considered superior, the court should determine whether the services which make that placement superior could feasibly be provided in a non-segregated setting. If they can, the placement in the segregated school would be inappropriate under the Act.
Roncker, 700 F.2d at 1063. Under the second part of the test, if the district can feasibly provide services sufficient to satisfy the child's IEP in a regular classroom, the school district may nonetheless place a disabled child in a segregated setting
because the handicapped child would not benefit from mainstreaming, because any marginal benefits received from mainstreaming are far outweighed by the benefits gained from the services which could not feasibly be provided in the non-segregated setting, or because the handicapped child is such a disruptive force in the non-segregated setting.
Id.
The LRE analysis in this case would not be materially different under any of the three standards articulated by the various federal courts of appeal. Given the use of the Roncker standard in the two neighboring federal circuits, its application in this case is appropriate.
The Parents and the District share the view that the Student should not be placed in a regular education classroom 100% of the time for the eighth grade. The essence of their disagreement involves the degree to which the Student should be educated in a segregated environment. The District contends that the LRE is a wholly segregated placement with other disabled students. The Parents contend the LRE is a segregated one-to-one placement involving no peer contact in academic and social skill classes, with mainstreaming at [City] Middle School for non-academic courses such as band and physical education.
The parties agree (albeit for different reasons) that providing academic services in a segregated setting is superior and that these services cannot feasibly be provided in a non-segregated setting. The evidence amply supports the parties' implicit conclusion that a segregated academic placement is necessary for the Student to receive an academic educational benefit. Accordingly, application of the first part of the Roncker test decisively establishes that a mainstreamed placement for the academic component of the Student's program would not be feasible.
Absent the mainstreaming component in the Parents’ preferred program, the placement at Washington School would without doubt be a less restrictive placement than the Parents’ proposed one-to-one placement. As a matter of law, a segregated placement with disabled peers is less restrictive than a placement away from any peers. See Glendale Unified School District, 26 IDELR 803 (SEA Cal. 1997)(independent home study program more restrictive than a placement in a segregated program attended only by disabled children); Jefferson Parish School Board v. Picard, 27 IDELR 824 (E.D. La. 1998)(home schooling more restrictive than a special education facility for autistic students); School District of Monona Grove, 27 IDELR 265 (LEA Wis. 1997); 34 C.F.R. § 300.551 (indicating that a special school is less restrictive than home schooling).
The fact that Washington School may be far more regimented and structured than the Parent’s preferred one-to-one placement does not mean that Washington School is a more "restrictive environment" within the meaning of the law. As previously noted, LRE pertains not to the relative regimentation of an educational program, but rather only the extent to which a disabled child is educated with nondisabled children. 34 C.F.R. § 300.550(b)(1).
If the Parents’ preferred segregated placement did not also include a component of regular education, the analysis would end here – Washington School would be the LRE as a matter of law.
The only question that remains is whether the limited mainstreaming component of the Parents’ preferred program transforms it to the LRE over Washington School. Application of the three factors in the second part of the Roncker test yields the conclusion that it does not, so Washington School remains the LRE.
Two of the three Roncker factors weigh in favor of the Parents’ preferred placement. The Student has been participating in band and physical education at [City] Middle School for approximately four class periods per week since early December 1999. Though this mainstreaming has not been entirely without incident, the Student’s participation has not resulted in any undue disruptions in the learning experiences of either himself or his classmates. Further, the Student undoubtedly benefits from this participation in the regular education environment.
The remaining Roncker factor, however, is the weightier and decisive factor in this case -- whether the marginal benefits received from mainstreaming are far outweighed by the benefits gained from the services provided in the segregated environment.
The Parents’ preferred placement, with its limited mainstreaming component, simply does not provide a level of social skills instruction that meets the Student’s needs. The program at Washington School involves persistent monitoring of peer-to-peer interaction in a classroom environment. A critical component of any educational program for the Student should involve interaction with peers, disabled or not. (Kane, Allen, Black). It is through peer interaction in the school environment that the Student can better learn to control his poor behaviors.
To be sure, the Student’s peer-to-peer interaction is being monitored in his present limited mainstreaming. The benefits he derives from this one non-academic class period per day in either a gym or a band hall, however, are far outweighed by the benefits to be derived from ongoing peer interaction and monitoring for the entire school day at Washington School.
Further, there is insufficient evidence to support the conclusion that the Student's social skill deficits can be sufficiently addressed without any sustained peer interaction. The social skill training the Student presently receives in his one-to-one placement is simply not adequate to meet the Student's severe deficits in this area. A component of the instruction he now receives involves his one-to-one teacher and her aide role-playing as the Student’s peers. Such role-playing with adults is an inadequate substitute for genuine interaction with peers. For the most part, the Student historically has behaved reasonably well in one-to-one teaching situations with adults. (Hughes, Hinton, Houts, Costello, Heinrich). It is not surprising that he has also done reasonably well in the role-playing exercises with his one-to-one teacher and aide.
The Parents believe Washington School is inappropriate for the Student because the ED students with whom he would be educated will provoke his "mimicking" behaviors, which are a manifestation of his Tourette’s disorder. Washington School has successfully educated children with Tourette’s in the past. There is no evidentiary support for the conclusion that it could not achieve similar success with the Student.
Thus, the substantial benefits from placement at Washington School far outweigh the marginal benefits from the limited mainstreaming in the one-to-one placement. The radical difference between the two placements in the amount of peer contact, and the substantial need that the Student have such contact to address adequately his behavioral issues, weighs heavily in favor of placement at Washington School.1
FOOTNOTE: Aside from the limited mainstreaming component of the Parents’ preferred program, the Parents’ disapproval of Washington School is largely a preference of one methodology over another. It is settled, however, that parents, "no matter how well motivated, do not have the right … to compel a school district to provide a specific program or employ a specific methodology in providing for the education of their handicapped child." Lachman v. Illinois State Board of Education, 852 F.2d 290 (7th Cir. 1988).
For example, the Parents believe that the academic program in the one-to-one placement would be more effective than Washington School in providing the Student academic instruction. However, there is no showing that the academic programs in either placement would be materially different, and there is substantial evidence indicating that the program at Washington School may be more effective academically.
Similarly, the two placements employ similar behavior modification techniques. Both use a "point system" to monitor the Student's behavior, rewarding good behavior and requiring "consequences" for poor behavior. A part of the behavioral program at Washington School that the Parents adamantly oppose is use of a "quiet room", which is a measure at the upper end of the continuum of consequences for poor behavior. The Parents reported the Student being traumatized by abuse of a similar measure in the second grade. Regardless of the reasonableness of the Parents’ apparent concern that the staff at Washington School might not responsibly and safely employ the "quiet room", the Parents’ categorical opposition to the use of a "quiet room" is in essence a preference respecting methodology. (endnote).
Alleged denial of FAPE following termination of enrollment from Carl Traeger Middle School.
The Parents contend that the Student was denied FAPE from the time that his enrollment at Traeger was terminated effective September 13, 1999, until January 5, 2000, when the academic component of the negotiated stay-put placement was implemented.
When officials at Traeger opted to terminate the Student’s enrollment, the District had no "back-up" plan to provide educational services to the Student. The District provided no educational services from September 13, 1999, to October 18, 1999, when it offered a stay-put placement under the existing IEP. This failure to provide an educational program deprived the Student of FAPE during this period.
From October 18, 1999, until January 5, 2000, the District continued to provide no academic services (other than very brief instruction at a private learning center).
The parties agreed to an alternative stay-put placement in early December 1999. This agreed placement closely resembled the one-to-one placement that the District had earlier indicated it would seek to implement no later than October 5, 1999. The academic portion of the agreed stay-put placement did not commence until January 5, 2000, however, because the one-to-one teacher had become unavailable due to health issues. Thus, the Student continued not to receive FAPE from October 18, 1999, to January 5, 2000.
The District met its placement obligation under the letter of the law as of October 18, 1999, when it offered a stay-put placement at [City] Middle School under the existing IEP. 34 C.F.R. § 514(a). This legally sufficient stay-put offer, however, was illusory. The District recognized, as did the Parents, that [City] Middle School was not an appropriate placement. Indeed, the District justifiably believed that the Student would not receive an educational benefit upon re-enrollment at [City] Middle School.
Compensatory education is an equitable remedy affected by equitable factors. See Harris v. District of Columbia, 19 I.D.E.L.R. 105 (D.D.C. 1992).
The equities weigh in favor of awarding compensatory education for the deprivation of FAPE from October 18, 1999, to January 5, 2000. The District’s offered stay-put placement of 100% regular education at [City] Middle School, though legally sufficient, was in actuality a placement that the District believed would not provide the student with FAPE. In contrast, the District’s early willingness to place the Student in a homebound-type program confirms that program's superiority over the offered stay-put placement at [City] Middle School. It would be inequitable to deny the Student compensatory education for the deprivation of FAPE after October 18, 1999. The District may not avoid an award of compensatory education by offering a stay-put placement that it knew would not provide FAPE, particularly when it had earlier expressed assent to a segregated placement that would have provided an educational benefit.
Approximately seven weeks passed between the District’s stay-put offer of October 18, 1999, and the agreement on the stay-put placement in early December 1999. Approximately three more school weeks passed between the stay-put agreement and the actual commencement of the academic services in January 2000, because the identified one-to-one teacher was not healthy enough to provide the services immediately.
In consideration of all the equities, the District should provide the Student with compensatory education services for the entire period that he was without an academic program, from September 13, 1999, to January 5, 2000. The academic program now being offered in the negotiated stay-put placement would afford appropriate compensatory services. The District shall provide academic compensatory education to the Student for a period of twelve weeks (employing a four-day week), in conformance with the academic program presently being provided under the negotiated stay-put placement. No compensatory non-academic programs are in order. The parties remain free to agree to an alternative form of compensatory services in lieu of the ordered services. In the absence of an agreement otherwise, however, compensatory services in the form described above shall be provided before the beginning of the 2001-2002 academic year. The services need not be provided over a continuous period.