In special education, the implementing regulations of the Individuals with Disabilities Education Act (“IDEA”) establish the basic framework of how the process is supposed to work, but it’s the case law that comes from due process cases and their appeals that refine the use of some terms in many cases. Often, the case law summarizes bits and pieces of the regulations taken from different legal citations to arrive at the formal definition of a particular term, such as the definition of a Free and Appropriate Public Education (“FAPE”).
I want to focus on one of those bits and pieces today, that being what is meant by the language “the education rendered comports with the IEP,” because I don’t think a lot of people really understand what this means. This legally significant phrase comes to us from indirectly from 34 CFR Sec. 300.17(d).
Procedurally, the IEP is a legally binding document that is supposed to serve as the blueprint by which a disabled child’s education is supposed to be delivered based on his/her individualized educational needs. When school districts fail to implement the language of the IEP as it is written, the education rendered fails to comport with the IEP. The federal precedent from case law appears to establish that a FAPE is automatically denied when the education rendered fails to comport with the IEP in a material way, precluding the need to examine whether any substantive harm actually arose from the failure to implement the IEP as written.
I’m including here a link to a very well-written 2008 due process decision in California that illustrates the point quite well. In this example, the word “conform” is used in place of “comport,”? but the concept is the same.
The legal analysis, which cites the relevant authorities, begins on page 21 of the Decision, though it’s not going to make a lot sense if you don’t have a grasp of the back story told in the first 20 pages of the document. I think using this Decision as an example is a lot better than me trying to re-create one, particularly since using the actual Decision provides you with the arguments and authorities determined critical by the Administrative Law Judge (“ALJ”).
There were other issues tried in this case and the ordered remedy is not the point of this blog article/podcast. The point here is to illustrate what happens when school districts fail to implement a child’s IEP, particularly when that IEP actually contains appropriate interventions.
In this case, which I’ll refer to in short as Coronado, something unfortunately very common happened to this child: he was transitioning from middle school to high school and the high school was not equipped or prepared to implement all of the parts of his IEP. In many school districts, what happens is an IEP meeting is called towards the end of a child’s last year of middle school to plan for the transition to high school, and the team from the high school attempts to water down the language of the IEP to make it match what they already have in place and are willing to offer, regardless of whether it’s appropriate to the child’s needs or not. (And, actually, I’ve seen this happen when kids transition from elementary to middle school, as well.)
In Coronado, some of that happened with respect to the Student’s counseling services, but mostly what happened is they left things in the IEP because the Student needed them and then simply didn’t provide them to him once he got to the high school. The result was lost educational benefit, which the parent offset by paying for outside tutors and tutoring him herself. There was nonetheless a significant social/emotional regression as a result of the District’s failures, which amounted to a denial of a FAPE from a substantive standpoint.
It’s really easy when reading due process decisions to get lost in the academic and theoretical ideas because applying the law to the facts is how these cases are decided. But, the reality is that these facts are the events of a child’s life and that of his family members. The lost educational benefit was his and his life was impacted significantly by the school district’s bungling of his special education matters.
The efforts to protect him from harm and remedy his losses were those of his mother, who was actually an attorney licensed to practice law in another state. One has to wonder what would have happened if she had not been formally educated on how to do legal research and present a legal case. She prevailed on all of the issues she brought to hearing, which in the current hearing climate is quite an accomplishment.
More to the point, however, was that she was not practicing lawyer in California at the time that she took this case to hearing. She was acting as an unrepresented parent who, fortunately for her child, had a unique skill set that better prepared her for the arduous tasks of preparing a case for litigation. This was a labor of love by a mother for her disabled child. In addition to parenting this challenged young man, she was providing him with the specialized instruction that he was failing to receive at school, raising his sibling, and preparing for hearing. There is no mention in the Decision of the child’s father, which means that this Herculean effort was most likely taken on by a single mom.
As important as it is for everyone in special education to understand the rules of how children with disabilities are supposed to be educated, as well as the consequences of failing to abide by the rules, I think it’s even more important to appreciate that the rules were created to protect real people from real harm. I frequently tell the parents I work with that the whole point of our lay advocacy work at the IEP level is to end up with a document worth enforcing. Once you have an IEP worth enforcing, it’s just a matter of enforcing it, which doesn’t necessarily require due process.
Failure to implement the IEP as written is a procedural violation as well as a FAPE claim and it’s a lot less of a hassle to file a compliance complaint with your state’s department of education early on when a district is failing to implement an IEP as written than to wait until a lot of time has passed and significant substantive harm has been done to the child so that due process becomes the more appropriate mechanism, in my opinion.
Most of the due process cases I’ve been involved in have arisen from efforts to just get a decent IEP in the first place. In Coronado, it appears that the IEP had good stuff in it; it just wasn’t being followed. In my experience, just getting to the point where the IEP has all the stuff in it that it needs is the hardest part and sometimes due process has become necessary to try and achieve a document worth enforcing. But, once you get it, the District should be implementing it as it is written and it should only be changed if the student’s needs change, not because another campus can’t or won’t implement its contents.
I’ve been at those transition IEP meetings where the members of the team from the high school say, “The general education teachers will never do that,” or “We just don’t do that at our campus.” Sometimes they’ll try to squash an accommodation or modification by claiming that it is enabling the student to remain dependent upon adult support, but then they fail to propose how to teach the student to become independent and act like simply eliminating the support will achieve the intended outcome automatically – as though the “sink or swim” approach is going to suddenly cure a handicapped child of his/her disability or magically impart knowledge that no one has yet been able to successfully convey to the child.
Laziness and apathy by any other names are still laziness and apathy. I don’t know what it is about transitions from elementary to middle school and from middle school to high school that seem to bring this kind of distasteful conduct out in so many adults employed within the public education system, but it’s a systemic problem that I was very, very happy to see get the smack-down in the Coronado Decision.
I sincerely hope that the educators out there following Making Special Education Actually Work take all of this to heart. I know not all of you think this way, but many of you feel powerless to do anything about it when your co-workers and superiors make jackass decisions like this.
Special education directors need to seriously take note because this is the kind of stuff that goes on when you trust that your subordinates are doing their jobs and you’re not actually making sure that they are. In Coronado, the District members of the IEP team tried to run their cockamamie ideas about reducing the Student’s counseling services past their boss via email and he emailed back with appropriate guidance, which they promptly ignored.
The special ed director was at least absolved of direct wrong-doing, but he clearly didn’t follow up to determine if what they did was consistent with what he told them to do (which it wasn’t). As a result of their boneheaded decision-making, the entire District took the hit and had to reimburse the parent for her out-of-pocket costs for tutoring and counseling services as well as provide compensatory education.
This is the kind of thing school boards need to understand, as well. The costs of litigation do not compare to doing the job right in the first place. In Coronado, the District was fortunate that the parent represented herself rather than hiring an attorney and recovering her attorney’s fees and costs upon prevailing. Otherwise, the total cost to the District for its missteps would have been even greater. As it was, the District had to pay for its own lawyer, the costs associated with pulling teaching staff out of class to testify in hearing, document preparation, facilities for the hearing, and – ultimately – reimbursements to the parent and the costs of compensatory education to make up for its mistakes.
Taxpayers need to understand the implications here, as well, and hold their local school boards accountable for providing adequate oversight of districts’ special education operations. Too many school boards regard special education as a mysterious and expensive headache that they just don’t want to have to understand or think about, only to get slapped with litigation costs when somebody (or several somebodies) employed by the district screws up.
Ultimately, these costs come out of all of our pockets and that’s not what we invest in public education for. We pay for all children to be educated, including those with disabilities, and when they aren’t, we end up paying for these children’s cases to be litigated and/or we end up paying to support them for the rest of their lives as adults. When a FAPE is denied, which is far too often the case, not only do we eat the legal expenses of any resultant litigation, we bear the financial burden of far too many of these children growing up to become welfare dependent, institutionalized, or incarcerated. And, there’s no way to spin that in a way that makes it right for anybody.
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