NOVEMBER 2021 Topic

Legal case study: Do we have to serve Individualized Education Plan (IEP) minutes in-person during a pandemic?

Overview 

The L.V. v. New York City Department of Education case addresses the question “Do we have to serve an Individualized Education Plan (IEP) minutes in person during a pandemic?” At least for the case of a five-year-old with Autism Spectrum Disorder, the court ruled that the answer is yes. This ruling also considers how the court views the “stay put” provision during times of a state-mandated school closure. 

Key Legal Terms Related to this Case 

• Free and Appropriate Public Education (FAPE) Sec. 300.101 
• Individualized Education Plan (IEP) Sec. 1414 
• “Stay Put” Provision: 20 U.S.C. § 1415 (j): This section of IDEA gives parents the right to request that their student continues with educational services in their initial-current placement while any due process proceedings take place. 
• Learn more about the “Stay Put” Provision here: https://www.freemanlawoffices.com/articles/stay-put-in-special-education/ 

L.V. v. New York City Department of Education (2019-2020): New York 

A parent disputed the quality of education that her son received during the state mandated school closure during the COVID-19 pandemic. At the time of this case, the student was 5-years-old and he first qualified for Special Education services when he was 3-years-old. This student qualified for special education services under the educational label, Autism Spectrum Disorder. This student had services in Occupational Therapy, Physical Therapy, Speech/Language, Applied Behavior Analysis (ABA), and other forms of support. During the school closure, IEP minutes were served virtually and through a school-issued iPad that included a hot-spot for wifi access. The use of an iPad and hot-spot wifi was to address the parent’s concerns regarding accessibility to virtual platforms and the parent’s financial burden to cover internet costs. 

The parent filed for a legal case on the basis of two major claims: 1) the school had discriminated against the student because of his disability and 2) he was denied Free and Appropriate Public Education (FAPE) services during the school closure. The parent’s arguments were further detailed throughout the case. First, the parent argued that the student had only received appropriate virtual services for physical therapy during the pandemic. Relatedly, it was unclear to the parent how services held in a virtual format would sufficiently meet the student’s needs.. Next, the parent was concerned about skill regression and questioned the fidelity of implementing interventions in a virtual format. This parent was especially concerned about providing ABA therapy virtually. Third, the parent reported difficulties with the hot spot wifi that further exasperated the ability for him to receive services with fidelity. Last, she expressed frustrations working with the school district prior to the pandemic and school closures. 

Court Ruling. The court determined that the student was entitled to in-person services to the maximum extent possible that was in accordance with public health and safety guidelines. In other words, this student was entitled to in-person support to satisfy his needs as detailed on his IEP, regardless of the state-mandated school closure. These supports included transportation with an aid and one-on-one minutes for various services, including ABA, OT, and SLP. If the school district was unwilling to provide minutes in-person, they were asked to pay for and supply community based services to satisfy each area. The court also determined that the student needed to participate in an independent assistive technology evaluation to determine the most appropriate forms of technology to serve the student long term in a potentially virtual environment. 

Case Study to Practice: Questions to Consider 

• To what extent did students receive IEP support or interventions with fidelity? 
• Does severity of a disability negate virtual support? 
• What are the roles and responsibilities of school psychologists in assistive technology evaluations?

OCTOBER 2021 Topic

Legal case study: What happens if parents disagree with the results of a Functional Behavioral Assessment (FBA)?

Overview 

The D.S. v. Trumbull Board of Education (2020-2021) case required a district to consider the legal ramifications after a Functional Behavioral Analysis (FBA) was conducted for a student already identified for Special Education services. The parents requested an Independent Educational Evaluation (IEE) after disagreeing with the FBA results, but ultimately the parents were denied this request after the court determined that an FBA is not a full evaluation to justify an IEE. 

Key Legal Terms Related to this Case 

• Independent Educational Evaluation (IEE) see Section 300.502: parents have the right to request for an IEE  under public expense, typically in response to the results of a school-based evaluation and at the expense of the school. 
• Functional Behavioral Analysis (FBA) see Section 1414 & Section 300.530: FBAs may be conducted as a proactive measure to help inform a behavioral intervention plan. FBAs are required in some school-based evaluation cases, such as manifest determination or according to state laws. 
• Educational Evaluation see Section 1414: An educational evaluation requires a variety of assessment tools and strategies with use of technically sound instruments  to help determine if the child has a disability and/or to help inform the individualized education program. In conducting the evaluation, the local educational agency shall “not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child…”. 

D.S. v. Trumbull Board of Education (2020-2021) (Connecticut) 

A family sought an IEE to evaluate all areas of the student’s disability after disagreeing with the results of an annual FBA. The FBA was conducted as required by state law, which required an annual FBA to better understand behavior and progress. This FBA was conducted in March 2017, and the student was scheduled for a 3-year re-evaluation in October 2017. The school disputed this request, which is permissible under Section 300.502. However, the dispute led to a formal legal case. 

Ultimately, the court determined that because the school completed an FBA and not a full evaluation, there were no grounds to request an IEE in the first place. As stated in this court case, an evaluation “means a comprehensive assessment… that follows mandatory procedures outlined in Section 1414 of the IDEA, including assessing the child in all areas of their disability.” Section 1414 broadly describes the law for evaluations, eligibility determinations, individualized education programs, and educational placements. The court also determined that the timeline for the student’s already scheduled re-evaluation was appropriate. 

Despite this outcome, the results of this case actually conflict with a Question and Answer (Q&A) summary provided by the federal government. According to the Q&A document, the parent can request an IEE under 34 CFR §300.502 if they disagree with the evaluation results. This document further states that if the FBA was conducted to help inform IEP goals not part of an initial evaluation, the FBA may be considered a re-evaluation. 

Case Study to Practice: Questions to Consider 

• How do you interpret the law? Does a stand alone FBA equate to an educational evaluation? 
• Have you ever worked with a parent who disagreed with the results of an FBA? 
• Should we be conducting more FBAs during our assessments to help inform IEPs?