“Common Issues Found in Parent Complaints” Introduction In 1989 I was appointed as a Hearing Officer for the State Dept. of Education-Special Education by then Attorney General, Donald Siegleman. My appointment came as a result applying to be a Special Education Hearing Officer upon seeing an advertisement for applications in the Alabama Lawyer (publication of our State Bar association). There were 8 responses to that ad. The Department of Education (Supt. Wayne Teague) proposed my selection. Attorney General Siegleman signed off on it. From 1989-1993 there were seven (7) Hearing Officers. Two (myself and Susan DePaula) were appointed as a result of the ad (Susan had been a high school principal before attending law school). The other five were Siegleman appointments I believe a year prior to the ad. One of these gentlemen is current Hearing Officer Mike Cole. The selection of impartial Hearing Officers was the result of a court decision in Mayson v. Teague (1984). Prior to that lawsuit Hearing Officers were school superintendents and special education directors from school systems the child did not attend and college professors who had been involved in formulation of state policies for educating disabled children. During the period of 1989-1993 only two complaints in which I was the Hearing Officer actually proceeded to hearing. I believe during that four-year period, Mike Cole heard one. Former Hearing Officer John Green (the first Siegleman appointment) heard one. Another Hearing Officer – Steve Glassroth – heard one. The most significant case heard was the Green v. Jefferson County case (private placement) which was decided by Siegleman appointee Mike White. In 1993, the number of hearing requests accelerated. Part of the acceleration was because Tom Leonard (Birmingham), who had been the only lawyer filing hearings with any frequency, added another lawyer (Ginger Tomlin) to his firm. Ginger began to file complaints in the Northern part of the State. In addition, Jim Sears left the University of Alabama where he was a Special Education professor and moved to Mobile. He too began to file due process hearing requests. Charles Tatum, a lawyer in Jasper, Alabama, had an investigator who was an active member in SEAC, a disability advocacy group; so Charles filed a number of complaints as well. During the period, two of the six Hearing Officers resigned because there were not enough hearings/complaints. A third, Mike White, became general counsel for SDE upon Ed Richardson’s appointment as State Superintendent in 1994.

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Ms. DePaula resigned a few years later because of an increase in professional duties after her appointment as a Federal bankruptcy trustee. On occasion, Susan filed due process hearing requests on behalf of parents/disabled students. In 2001 or 2002, Hearing Officer John Green also resigned. He was the most senior hearing officer. A year later, Governor Bob Riley appointed Steve Morton as Hearing Officer. Throughout the 1990’s, there were still relatively few due process complaints. I did have 18 proceed to due process hearing during that period. Before the IDEA reauthorization of 1997, 12 disputes went to hearing. Between its implementation in 1998 and 2001 when I began to actively track, there were 6 hearings that I conducted. After 2000, my calculations are that the yearly average (using the calendar year, not the fiscal year) represent the filing of between 140-170 due process hearings. The last statistics I saw (approximately a year and a half ago) revealed Alabama ranked 24th or 25th among the States in the number of complaints filed. Prior to the re-authorization in 2004, my recollection is that hearing requests exceeded 200 a year. That was because in a disciplinary action a “stay put” demand allowed the child to remain in his regular education setting as opposed to the present, where the child may be placed in an interim, alternative setting. In the years before reauthorization went into effect (2006) once the stay put demand was successful, the hearing request generally was withdrawn or the case was settled. Substantive Claims The most common thread running through due process hearings are the triggering event. The Hearing Officer (speaker) has calculated that he was written Due Process Decisions (that is, the due process hearing began and concluded requiring a decision) in 122 cases. This was for the period 1990-2017. A significant number of other cases proceeded to due process hearing and were tried for several days before the parties reached a settlement. The Hearing Officer (speaker) has broken these hearings down into the most common issues. The commonality of issues may also include procedural claims, as well as other matters (for instance, in a child find case there is usually also a claim of failure to timely evaluate). However, the calculations provided below are based on the primary issue that the ultimate decision addressed. (At least for this Hearing Officer, there were many “split decisions” where the parent prevailed on a procedural or lesser substantive issue but the school system prevailed on the more important substantive issue or vice-versa.) The cases decided are as follows:

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23-Child Find. These are the most common and generally have been the most successful for the parent’s attorneys. Most of the child find cases result from a parent’s request for “help” which was either ignored or delayed by the school system. Some occur where the parent believes child is making insufficient progress but system believes child is progressing or behavior issues (including absenteeism/tardy) are the cause of the child’s difficulties in his/her studies. The reason for delays in responding are often that the child is making good grades, school system personnel are not seeing behavior at the school that the parent reports at home, or the child is physically disabled but does not need special education. The more recent trend relied upon by the school system in rejecting evaluation is that special education eligibility requires not only (1) a disability, that (2) adversely affects educational performance, but (3) child must demonstrate the need for specially designed instruction.1 1

Specifically, designed instruction means adapting, as appropriate to the needs of the eligible child, the content, methodology or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children) The need for RTI (response to intervention) is also used to defend a system’s failure to evaluate. A number of the child find cases have been the result of a doctor’s request or a doctor’s statement that the child needs special education. Such a statement does not mean the child should be evaluated for special education. A medical diagnosis does not suffice for the qualification as a special needs child. Many parents are not aware of that fact. But doctor requests should trigger concern by school system officials that a special education evaluation may be needed. In one case, a (Psychologist) actually sat with school system officials and explained why child needed special education, and yet school system chose to ignore. Finally, there is child find involving school system personnel referral. School system referrals are very uncommon. Where they have occurred, in general, there have been major behavioral problems. In at least three of these referrals that proceeded to due process, the parent actually opposed the special education designation. (These 3 cases were counted in 22 below).

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22 – Inadequate or inappropriate evaluations. These hearings include a failure to attempt to evaluate, an inadequate evaluation and/or a complaint about the result of the evaluation (i.e. found ineligible and, on occasion, a finding of eligibility). These type cases usually result in a request for an Independent Education Evaluation. Often these are the most difficult cases to preside over, in that if the evaluation is found to be inadequate by the Hearing Officer, what relief should be granted? (For example, does the Hearing Officer have the right to declare the child eligible? Should the Hearing Officer declare re-testing for the child? Or should the Hearing Officer characterize the evaluation as containing merely procedural errors and require additional evaluations or more training of personnel to address the errors?) The increasing trend is away from intellectual/psychological evaluations and toward behavior evaluations and functional behavior assessments. The last several years almost all complaints allege inadequate behavior evaluations. But remember, on a purely legal note an FBA/BIP are only required if there is a determination that inappropriate behavior in violation of student code of conduct is a manifestation of the child’s disability. 20 USC §1415(k)(i)(F) or upon removal from current placement and continuation of educational services the child receive as appropriate FBA behavioral intervention services and modifications designed to prevent reoccurrence of behavior violation 20 USC §1415(k)(l)(D)(ii). The filings on behavioral grounds have been greatly increased by the “curse of the ADD/ADHD diagnoses.” This condition, which was added to the other health impaired category of disability in the 1997 re-authorization, has caused many parents to believe that because their child has a medical diagnosis of ADD/ADHD the school system must automatically evaluate for behavior/ take steps to formulate a behavior plan. 22 – Failure to implement IEP’s. Each of these failures are alleged to constitute a denial of FAPE. The primary emphasis in these due process hearing requests has been the absence of related services, the failure to provide, revise, or implement a behavior intervention plan and inadequate training of staff. Most of these cases contain allegations of other substantive violations (the underlining theme is parent complaining of one size fits all program versus system saying parents desire “Cadillac” program). 4

There are transportation cases concerning IEP implementation. Trend will be more cases involving autism spectrum, data collection, ABA strictly implemented. Endrew F. v. Douglas County (2017) will be the vehicle for these cases. 12 – Improper IEP’s These are primarily brought because of the absence of a behavior component. Remember that a BIP may not be necessary if IEP addresses behavior. Again, it is anticipated the decision of U.S. Supreme Court in Endrew F. will increase the filing of these type cases. Other due process complaints of an improper IEP are because staff have not been adequately trained to provide it or the staff selected were not appropriate. These cases have not generally been successful at due process hearing/ or court level. Often the claim is that the IEP is too simple. Other parents maintained that IEP’s are too complex and the child cannot access or learn by means of IEP. 11 – Due processes that were strictly manifestation hearing disputes. The Hearing Officer has separated these from the cases in which manifestation was found not to have caused the behavior and the cases that morphed into a least restrictive environment issue. Of course, in those LRE cases, there were also allegations of an improper manifestation hearing. The manifestation hearings are whether the behavior was caused by a disability and from there, if it is found not to be a manifestation, then the due process hearing expands into claims of inadequate BIP/no FBA. Again, the curse of ADHD returns. But the parents have not prevailed very often in these cases. School systems often overlook that there are two prongs that will result in a manifestation determination. One is that the improper behavior is a manifestation of the child’s disability. The second, is that the inappropriate conduct will be considered a manifestation of disability if the school system has failed to implement the child’s IEP. 20 USC§1415 (k)(l)(E)(i)(I)-(II). Oddly, parent lawyers seldom raise the second prong. 8 – Pure Least Restrictive Environment. Generally, most of these cases involve a behavior component: whether behavior is due to the child’s disability (Autism, MR, etc.) versus simply, bad behavior. (The MLB child). 5

These cases have come about where a child is placed in homebound; regular schools but sequestered; alternative school; regional schools designed to “address behavior”; and special schools that generally deal with social skills. Others include, really not behavior (i.e. inattentiveness), but where the parent wants the child to remain in the regular classroom or alternatively, parent wants the child in resource classroom or self-contained class. These cases include too much time in one or the other placement. Finally, there are cases particularly common with intellectual disabilities (MR) where parent objects to selfcontained classroom. Most of these cases- other than misbehaviors- have settled without due process hearing. The Eleventh Circuit in Greer v. Rome City School Dist (1991) defined elements which should be used to determine when “to the maximum extent appropriate” child should be placed with non-disabled peers. One factor that I consider particularly compelling is what effect the child’s behavior/condition has on the other children in the class. Is the disabled child disrupting their studies? Is an excessive amount of time being used by staff to address the behavior/condition? What alternatives (aide, resource room, restraints, etc.) exist? 7 – Failure to provide related services. Occupational Therapy, physical therapy, assistive technology, and speech. Sometimes all four are a component of the complaint. The case of Miles S. v. Montgomery County (1992) – is the most significant related service case. In it the court found that PT/OT for severely disabled child were for educational purposes versus parents’ testimony that it was for the child’s survival. 6 – Private Placement/Residential placements. These cases have been based on allegations of lack of adequate service or no services provided – including feeding and assistive technology. One or two have been based on lack of IEP progress, but these particular cases concerned very involved children. The third type is that the child’s behavior is so severe it requires commitment. In two of the due processes on private placement, it was the parent who desired commitment. 5 – Least Restrictive Environment because of behavior. The issue is whether the alternative school is the best solution, as well as the system’s claim that the proposed school is not alternative school by another name. (The Cool Hand Luke situation). Also, whether the school proposed for placement is a last resort before psychiatric or some other restrictive special school.

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4 – Failure to provide transition services. Half involve children not yet 16 and half involve the inadequate functional training in which the help provided by the system was more like OT (usually only by consultative means) than actual vocational training. 20 USC §1414(d)(A)(i)(VIII)(beginning no later than the first IEP in effect when the child is 16…) or other true transitional service. There have been several recent federal court cases where the school system was directed to pay college tuition for violation of transition services. Also, a trend is to escrow an amount for payment of vocational or services. 4 – The school system failed to comply with settlement/mediation agreement. Who makes the determination of a violation? Some case law says three alternatives for system’s failure to comply with settlement agreement/mediation agreement: state complaint procedure, due process hearing, and court (State or Federal – i.e. settlement is a contract). Other cases say the court is the only way to contest a failure to comply with the settlement or mediation. But there is the exhaustion boogie man where parent lawyers have gone straight to court and then been returned to due process hearing on premise of failure to exhaust remedies. 4 – Retaliation. These cases arose beginning in 2005-2006. They are really an offshoot of the exhaustion remedy requirement. Normally the retaliation is procedural in nature, i.e. failure to include the parent in IEP process/pre-determining IEP, excluding parent from campus, removing child from special education bus or other punishments because of minor behavior problems. 5 – Pure “stay puts” after the 2004 reauthorization. These “stay puts” are to prevent the child from being placed in an alternative school; prevent child from being transferred to another school; and discontinuation of a program and/or closure of entire school. (The latter type of due process, i.e. discontinuation of a program, or closure of a school generally must be dismissed). School personnel should remember that a child remains in their interim alternative setting “pending decision of Hearing Officer” 20 USC §1415(k)(4)(A). Also, child must be subject to same as punishment for children without disability. 20 USC §1415 (k)(l)(C). Occasionally, more as an offshoot of a child find, there is the stay put issue for a child not yet found eligible for special education. 20 USC §1415(k)(5). Any cases where that is the only claim have not gone to hearing because the school system generally will agree to keep the child in their original placement as well as evaluate. 7

4 – Unusual cases because the child extremely low functioning and/or had unique needs, both physically and intellectually. Placement in centrally located programs where system has medical, nursing, and other specialized components. Financial considerations or systematic school-wide violation of LRE? These cases involve any number of complaints including, inadequate evaluation, lack of a behavior component (particularly a child in the Autism Spectrum), inadequate training of staff, inappropriate methodology, placement at the wrong facility [violation of LRE] abuse by staff, etc. 3 – Parents seeking only monetary damage, which cannot be awarded. Sometimes that aspect was not revealed until matter has proceeded to hearing. Also, there is an exhaustion issue/ res judicata issue. 3 – Complaints about methodology. These are particularly common in the early years of the Hearing Officer’s tenure and generally involved initially, reading (dyslexia) and then, Autism. The curse of applied behavior analysis/the curse of Orton-Gillingham and other trend methodologies. 2 – Extended school year. Systems’ should avoid over reliance on regression and recoupment analysis. Courts will also examine parent capability of providing programs for child through their own means, the type of disability-particularly level of intellectual functioning-and child’s academic/behavior status before the ESY period began. 2 – Exhaustion One of these cases was brought in federal court alleging bullying and the Court ordered it to be re-filed as a due process. A second was a need for medical assistant in transport of child. It was filed as an ADA/ §504 case in federal court. Court required parent to refile as a due process. Although the Hearing Officer was not involved in the others, there are several other §504/ADA/§1983 cases that were either remanded by the federal court (not sure on what authority) or required to be filed by the parent via due process in order to return to federal court.

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Procedural Claims These claims generally accompany substantive claims. Substantive claims are those under 20 (USC)(1415)(b)(6)(A) which says a parent has a right to a due process hearing for anything regarding the identification, educational placement, evaluation, or provision of FAPE. A procedural violation is only recoverable if the actions impede the child’s right to a FAPE, cause a deprivation of educational benefits or significantly impede the parent’s opportunity to participate in decision making regarding FAPE. 20 USC §1415(f)(3)(E)(ii). Increasing trend is that federal court will characterize substantive violations (i.e. child find, etc.) as procedural. The Hearing Officer has generally used the fact that the parent(s) were denied an opportunity to participate in child’s educational program as the reason the procedural violation might result in potentially prevailing party status. (The Hearing Officer does not have the authority to determine prevailing party status. That is the district court’s province 20 USC §1415(i)(3)(B)(i)). There are 10 cases in which the presenting Hearing Officer found significant procedural errors: failure to provide records, failure to provide notice of procedural rights, failure to explain a FBA, IEP, BIP when asked by parent, failure to provide copies of records, and failure to allow the parent to proceed to due process hearing. Almost all had a combination of these procedural violations. The “punishment” was usually to require staff training. Beavis v. Jefferson County Bd of Ed.: copies only required for IEP, MEDC eligibility summary, prior written notice of intent, and procedural due process rights. 8 – Parent does not want eligibility – or parent maintains school system has classified the child under the wrong disability category. Services override disability characterization or label. Bowens v. Baldwin County Board. (1993). 6 – Predetermination. This Hearing Officer has applied this category four times in favor of parent and concluded that parent was denied opportunity to participate in provision of FAPE for his/her child. Predetermination was never applied because of the fact that the school system had compiled a draft IEP or where school personnel told parent prior to the IEP that such and such was what the testing/evaluation was showing. These cases are very witness/evidence specific.

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4 cases where parent did not prevail due to his or her failure to cooperate/or consent including participate in resolution. 3 cases, violation of privacy. 3 cases where school system refused to change grades, transfer the child to another class because parents liked the teacher better, school refused to transfer the child, or refused to give the child additional time to go from one class to the other during the school day. 4 cases where the parent sought to compel graduation, compel the school system to advance the child to the next grade, compel the school system to hold the child back (retain), or to compel the school system to allow participation in an athletic event. 3 cases where there were relatively minor procedural violations – inappropriate people at IEP, required personnel left IEP meeting early, school system alleged to have amended an IEP without parental permission, testing without permission: i.e. standardized testing confused with evaluations, no parent signature on IEP, shortened school day (i.e. child with disability leaving class early to avoid hallway chaos/reach transport site). Remember that a significant number of relatively minor procedural violations in totality may result in a Hearing Officer finding of a denial of FAPE. 3 cases where the school system delayed the evaluation beyond the timelines, delayed an IEP meeting beyond the timelines, or delayed a re-evaluation beyond the timelines. In each of these cases the Hearing Officer found in favor of the parent on those issues but the parent lost on the substantive issues. Parent claimed prevailing party status for the procedural victories in all three cases but federal court (3 different judges) awarded no attorney’s fees. Issues prevailed on were not significant enough to result in prevailing party status. 3 cases where the school board defended its evaluation against parental request for IEE. This is a recent trend and the Hearing Officers have generally consolidated the Board’s defense with the initial case requesting an IEE. 3 cases: 1 of not providing lessons to a homebound student and two not providing lessons to a student in the hospital. 2 cases in which the school system failed to place the child in a school/facility the parent desired. These cases were initiated primarily for exhaustion of remedies in that parent had transportation issues for severely handicapped child or child had significant medical issues which school system was alleged to have failed to address. Hearing Officer found no authority to place the child purely on parental desire. One minor behavior issue which was refusal to wear a uniform.

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