Due Process Hearing Case Study

By Bateman, David F

Greg is 13 years old, and currently in seventh grade; he entered __________ District (“the District”) schools in fourth grade as a student with a specific learning disability; he had been identified as eligible for special education programming and services during second grade. During fifth and sixth grade Greg was provided services through a resource teacher for his learning disabilities, most notably for his problems with language arts and math. During sixth grade his behavioral difficulties resulted in him spending the last 6 weeks of the school year in an alternative education placement. Because of his behavior difficulties, the District sought to classify Greg as emotionally disturbed and sought a placement other than the resource room for students with learning disabilities. The issue presented at the due process hearing was the appropriateness of the District’s proposed placement in a full-time classroom for students with emotional disturbance. Greg’s parents opposed the proposed placement, wanting him retained in his neighborhood school with additional support.

Greg’s negative behaviors began during the last quarter of fifth grade, during which time he received 32 disciplinary referrals for problems such as noncompliance, physical and verbal aggression, defiance/disrespect toward teachers, and disruption in the classroom. The negative behaviors continued through April of sixth grade; during this period, he received 72 disciplinary referrals for noncompliance, argumentative and oppositional behavior, tardiness, continuous talking in class, harassing other peers, defiant and disrespectful behavior, lying to teachers, inappropriate language (including cursing), and vandalizing school property.

In April of Greg’s sixth-grade year, the District held an individualized education program (IEP) meeting for the purpose of addressing the problem behaviors. Greg’s IEP to this point had focused solely on his learning disabilities and not on any behavioral problems; he received support for reading and mathematics. The new IEP included a functional behavior assessment.

At this time, the parents agreed to a trial placement at a local alternative education program 45 minutes from his home because they felt Greg was not making enough progress. Although the alternative program was not considered a special education placement, the classes were small, the program included a group counseling, and there was a special education teacher available. Greg made inconsistent progress.

During the summer following sixth grade, Greg’s parent’s notified the District that they wanted him to return to his neighborhood school. Greg’s new IEP, developed over the summer, included a behavior plan that relied upon punishment and time-outs.

The District representative on the IEP team maintained that Greg’s most appropriate placement would be in a serf-contained classroom for students with emotional disturbance; at the minimum, Greg should return to the alternative education program. The District’s position was that Greg’s problems in the regular middle school classroom affected his learning as well as the learning of others. Teachers described his behaviors as so distracting that he was not making any academic progress.

Reading and math assessments at the beginning of seventh grade indicated Greg was reading at the early thirdgrade level and indicated math ability at the early fourth-grade level. His full- scale Wechsler Intelligence Scale for Children-Fourth Edition (WISC- IV; Wechsler, 2003) score was 112, and his Behavior Assessment System for Children [BASC; Reynolds & Kamphaus, 2004) results indicated significant behavioral and emotional concerns present in the school setting. The District acknowledged Greg's learning disability; the overriding concerns were those presented by his emotional disturbance.

The District's Alternative Placement Recommendation

The District contracts out its services for students with emotional disturbance to a neighboring district; the recommended placement that his parents rejected would necessitate a 55-minute bus ride each way for Greg. Another IEP meeting held after the parents rejected the alternative placement added specificity to the reading and math goals, as well as a "behavior support plan." The plan included a positive incentive system and rewards for good behavior, but also time-outs for negative behavior.

The District continued to recommend placing Greg in the neighboring school district's classroom for students with emotional disturbance. Its position was that the classroom would have as a maximum of 10 students, had a convenient time-out room, and the program (which focused on social skills instruction) included regular consultation with a school psychologist. Again, the parents rejected this placement.

The Hearing

The District filed for due process after Greg's parents failed to approve its recommended placement in the program for students with emotional disturbance in the neighboring district. The due process hearing took place over five sessions, with both sides calling numerous witnesses. The main argument put forth by the counsel for the parents was that the District did not exhaust all alternatives before recommending a more restrictive setting. The parents' witnesses indicated the District should provide more supplementary aids and services (including more support for his learning disability and an appropriate behavior support program) before removing Greg from his local middle school. The parents further contended Greg was denied a free appropriate public education (FAPE), as the District failed to develop an IEP that included an effective behavioral support plan.

The Individuals With Disabilities Education Improvement Act of 2004 (IDEA) requires states to provide FAPE to all students who qualify for special education services (20 U.S.C. [section]1412). In Board of Education ofHendnck Hudson Central School District v. Rowley (1982), the U.S. Supreme Court held that this requirement is met by providing personalized instruction and support services that permit the child to benefit educationally from the instruction, providing procedures set forth in the Act are followed. The Rowley standard is only met when a child’s program provides him or her with more than a trivial or de minimis educational benefit (Polk v. Central Susquehanna Intermediate Unit 16, 1988). Additionally, the appropriateness of the IEP is to be judged based on information known at the time it is drafted (Fuhrmann v. East Hanover Board of Education, 1993).

Under IDEA and its implementing regulations, an IEP for a child with a disability must include present levels of educational performance, measurable annual goals and short-term instructional objectives, appropriate objective criteria to permit determination on at least an annual basis whether short-term objectives are being achieved, and the specially designed instruction to be provided (20 U.S.C. [section] 1414(d); 34 CFR [section]300.347). First and foremost, of course, the IEP must be responsive to the child’s identified educational needs (20 U.S.C. [section] 1414(d); 34 CFR [section]300.346). The District’s position was essentially that a change in Greg’s placement to a more restrictive setting was warranted because the program set forth in previous IEPs did not meet with success.

The parents contended that Greg’s behavioral difficulties during fifth and sixth grade clearly established his need for a behavior management plan. When a child’s behavior impedes his or her own learning or that of others, the IEP team must consider what behavioral interventions are appropriate. Behavior support programs should include a variety of techniques that permit the student to develop and maintain skills that address problem behaviors. A behavioral intervention plan can include, when appropriate: (a) strategies, including positive behavioral interventions, strategies, and supports; (b) program modifications; and (c) supplementary aids and services that may be required to address the behavior. The District implemented a variety of measures designed to address Greg’s behavioral needs; however, all the measures were punitive in nature. The District should have provided a variety of interventions and reinforcement strategies (consistent routine, extra privileges, self-monitoring, verbal reminders, tangibles) as well as reviewed with Greg the consequences of noncompliance. Overall, the District’s response to Greg’s behavioral needs was inappropriate. The hearing officer supported the parents’ claim that Greg was denied FAPE due to the absence of a behavior management plan, finding that the modifications and supports offered by the District were not adequate and did not provide FAPE.

Although behavior support programs should include a variety of techniques that permit a student to develop and maintain skills that address problem behaviors, Greg’s “behavior support plan” did not include any specially designed instruction for such skills, based on his needs or his history of problems. On the contrary, the record reveals that Greg was expected to modify his behavior on his own and would be punished if there were problems. Aside from the availability of counseling-which, again, was essentially Greg’s responsibility to seek-the IEP contained no specific plan of strategies for him to decrease his problematic behavior and lacked any positive intervention and support. In short, the behavior plan was not reasonably calculated to address Greg’s identified needs. Based upon the absence of any effective behavior plan in the IEP, it is not surprising that Greg was not successful. Although it may well be that Greg requires a placement other than the resource room for students with learning disabilities, the district’s evidence fell far short of establishing that the proposed alternate placement program was warranted.

The Decision

The hearing officer was compelled to conclude that Greg’s IEP was substantively deficient and that the District’s response to Greg’s lack of progress (developing a new IEP proposing placement for students with emotional disturbance in a neighboring district) was premature and unsupported by the record. The hearing officer therefore supported Greg’s parents’ arguments: The numerous IEPs that had been written recently for Greg did not appropriately address his behavior issues. The behavior plans that were finally written into Greg’s IEP were punitively oriented and not detailed or positive. The “behavior support plan” included in the proposed IEP was essentially a blueprint; although it contained somewhat of a positive reward system, it excessively relied upon time-outs (negative reinforcements), as had previous IEPs.

The hearing officer ordered the district to reevaluate Greg, especially including information from his time in the alternative placement and not relying upon the limited multidisciplinary team evaluation performed when he was in fifth grade by the District’s school psychologist. The District also was to convene the IEP team within 30 days of the date of the decision to develop a behavior management plan addressing Greg’s needs and fully consistent with all applicable state and federal regulations.

Finally, the hearing officer urged the parties to cooperate in Greg’s best interest. He will be of school age for a few more years, and will undoubtedly continue to need special education and related services. It is important to keep the focus on his needs and try to provide the appropriate education as soon as possible without establishing barriers to his receiving an appropriate education.

The District acknowledged Greg’s learning disability; the overriding concerns were those presented by his emotional disturbance.

The main argument put forth by the counsel for the parents was that the District did not exhaust all alternatives before recommending a more restrictive setting.

Aside from the availability of counseling-which, again, was essentially Greg’s responsibility to seek-the IEP contained no specific plan of strategies for him to decrease his problematic behavior and lacked any positive intervention and support.

References

Board of Education of Hendrick Hudson Genual School District v. Rowley, 458 U.S. 176 (1982).

Fuhrmann v. East Hanover Board of Education, 993 F.2d 1031 (3rd Cir. 1993).

Individuals With Disabilities Education Improvement Act of 2004, 20 U.S.C. [section][section] 1400 et seq. (2004).

Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3rd Cir. 1988).

Reynolds, C. R., & Kamphaus, R. W. (2004). Behavior assessment system for children (2nd ed.). Circle Pines, MN: American Guidance Service.

Wechsler, D. (2003). Wechsler intelligence scale for children- 4th edition (WISC-IV(R)). San Antonio, TX: Harcourt Assessment.

David F. Bateman has a PhD from the University of Kansas and is Professor of Special Education at Shippensburg University in Pennsylvania. He has been a due process hearing officer in over 580 hearings and is the co-author of The Special Education Due Process Handbook and A Principal’s Guide to Special Education. He is also chair of CEC’s Public Policy Committee for the Division for Learning Disabilities.

TEACHING Exceptional Children, Vol. 40, No. 6, pp. 60-62.

Copyright 2008 CEC.

Copyright Council for Exceptional Children Jul/Aug 2008

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