OCR Finds Policy Violates Section 504

On October 29, 2010, the U.S. Department of Education Office of Civil Rights issued an investigation finding regarding the use of temporary aides for special education. We are publishing it here in the hopes that the information can provide a constructive heads-up to other Local Education Agencies (“LEAs”) and empower parents facing similar situations.

The issue, in a nutshell, is the matter of LEAs creating policies that prohibit the application of a student’s unique needs to the development of an offer of a Free and Appropriate Public Education (“FAPE”).?In this case, the issue was the provision of aide services to children who require 1:1 aide support.

The student was a child transitioning to kindergarten from his local school district into a program operated by his county’s office of education. It is common for regional programs to be developed collaboratively among local school districts and their County Offices of Education (“COEs”) to serve needs that don’t occur that often within each individual district; the member districts pool their resources through their COEs, which students of each member district can access if needed.

The issue here was that the student, a child with autism, was to be transitioned with an IEP into a COE classroom and was going to be given a temporary aide during the first 30 days of his placement there, after which, if assessment deemed it warranted, the provision of aide services would be made a permanent part of his IEP. The problem with this was that it was local policy for the temporary aide to be terminated and a new permanent aide assigned to replace the temp at the end of the 30 days if it was determined that a permanent aide was required, regardless of whether changing staff in such a manner was appropriate to the unique needs of the student.

This was how things were done within the agencies involved and was documented in their policies and procedures manual. The argument asserted by the parent in her complaint to OCR was that changing her son’s aide after 30 days, when he was still adjusting to the major changes of transitioning from preschool and kindergarten, was inappropriate to his needs.

Because the COE insisted on adhering to this policy, the parent could not consent to the COE placement. It was, in her opinion, doomed to failure because as soon as her son became accustomed to working with a particular aide, the COE was going to require the aide be replaced by another aide after 30 days if assessment determined that he required permanent aide support in his IEP.

What this basically means is that the content of the student’s IEP was being driven by local policy rather than his individual needs and that other children’s IEPs could be similarly compromised. This makes it not only a FAPE issue but also a civil rights issue.

I’ve encountered this kind of thing before. During the 2009-10 school year, one of the school districts here in Ventura County where we have a fair amount of casework had a tenured administrator of a particular old-school ilk serving as the district’s 504 Coordinator, which Section 504 requires each LEA to have. By the Grace of God, she retired at the end of the school year and at least one of her discriminatory policies was reversed upon the beginning of the 2010-11 school year.

But, during that one school year, it was district policy that no child on a 504 Plan would be provided with a behavior plan of any kind. Prior to the 2009-10 school year, the 504 forms used by the district had a line item with a box next to it that could be checked to indicate if a behavior plan had been made part of the 504 Plan.

This administrator went so far as to have the forms changed to eliminate that line item and gave explicit instructions to school site personnel, who were utterly clueless regarding the requirements of Section 504, that no child on a 504 Plan was to receive a behavior plan. This caused significant problems for one of the children we represented and probably a number of other children who needed a behavior plan in order to receive a FAPE under Section 504 within the district.

To say I raised hell about this issue is an understatement. The administrator in question was completely non-responsive to my multiple pieces of correspondence about the matter. I pointed out the problem to the district’s special education director who, even though she wasn’t in charge of 504, still had a hand in the district’s 504 policy decisions given that special education students are protected by 504 as well as the IDEA.

Thankfully, I never had to file a complaint over the issue. The student I was representing at the time was eventually put on an IEP and assessed for a behavior plan. With the start of the new school year, behavior plans were once again made available to students served under Section 504.

The point I want to make to parents, educators, and representatives is the point driven home by OCRs findings in the case reported at the beginning of this post: LEAs cannot create policies and procedures that pre-determine or limit IEP or 504 Plan content in a manner that prevents the provision of supports that may be appropriate to an individual child’s unique needs. The content of an IEP and 504 Plan are both expected by federal law to be tailored to the unique needs of the child for which each respective document is written.

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