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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

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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

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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

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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.

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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."

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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

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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

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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

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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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7. DOWNLOAD FROM FATBRAIN -- SAVE TIME AND $$

Download the TACTICS & STRATEGY MANUAL from Fatbrain -- No Shipping or Handling Fees- Save $3.95! You get your book immediately - faster than Express Mail!

How does it work?

Go to Fatbrain at http://www.fatbrain.com/ematter/home.html

Type "wrightslaw" in the Quick Search box, then click "Go!"

The Wrightslaw page includes links to WRIGHTSLAW: TACTICS AND STRATEGY MANUAL ($3.95 savings) and WRIGHTSLAW: SPECIAL EDUCATION LAW (20% off).

Fatbrain uses a one-click ordering system that's similar to the system used by Amazon.com. Before you download, Fatbrain gives you a License Number -- you use this number to open the document after downloading. Save your License Number!

In our experiments with a 33.2 modem, it took less than ten minutes to download WRIGHTSLAW: TACTICS & STRATEGY MANUAL (1.1 MB)

If you download the TACTICS & STRATEGY MANUAL, drop us a line. In the Subject line of your message, write E BOOKS (in caps). Let us know your thoughts about the digital downloading experience.

If this process works smoothly, we'll publish more Wrightslaw publications as E matter. The costs to produce digital documents are lower. We'll be delighted to pass savings on to you. Thanks!

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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 "alerts" about new cases and other events. Back issues of The Special Ed Advocate are in the Newsletter Archives at our web site -

http://www.wrightslaw.com/main_newsletter_archives.htm

To subscribe to The Special Ed Advocate, go to

http://www.wrightslaw.com/approve.htm

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In the beginning of your message, insert the following words exactly, with hyphens, lowercase

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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