I am writing today about a deplorable situation in my home state of Arkansas involving an 11-year-old with autism who has failed to receive a Free Appropriate Public Education (“FAPE”), according to the events described by his grandmother (see the Examiner news article). Zakhqurey Price is a 5th grader at Beard Elementary in Fort Smith, AR, who is challenged by autism.
I’m not going to repeat verbatim the article cited above because that’s unnecessarily redundant. I’ve already posted comments on this article and its sister article at Great Schools in hopes that the family will get the word and contact Arkansas Legal Aid for help. The point of today’s blog article and podcast is to use this horrible situation as a teaching example and learning opportunity for others.? I’m going to presume for the purposes of this article that the family’s assertions are true.
Robin Hanson reports in the Examiner article that Zakh returned to school on August 18, 2009 after having been institutionalized. His family attempted to coordinate an IEP for him prior to the beginning of the school year but the Fort Smith school district refused to do anything until the school year started. In many states, the IEP process is disrupted by summer break and school districts are not required to engage in IEP-related activities until the school year starts.? However, not being required to do something doesn’t mean that school districts are necessary barred from doing anything.
While a procedural violation may not have occurred due to the District’s refusal to coordinate an IEP for this child prior to the onset of the school year, common sense dictates that it probably should have done so regardless of whether it was procedurally required or not. The millisecond that school began on August 18, 2009, the District instantly denied him a FAPE on the basis that whatever IEP he had failed to meet his unique needs and was unable to render educational benefit.
The change from institutionalization to a public school setting was a change in placement for which amendments to the IEP were required. These are two very different settings and the institution into which he had previously been placed was outside the District. An IEP meeting should have been held on the first day of school at the very latest to put together an appropriate offer of FAPE so that he could start school right away with appropriate supports and services in place from the very beginning. That was not done, thereby resulting in an actionable denial of a FAPE.
Zakh’s grandmother, Carole Reynolds, claims she has been refused access to Zakh’s records in spite of her repeated requests. She stated, “We have made requests to receive a copy of his evaluation/assessment results before the October 15th temporary placement IEP meeting and were refused because they said it was not allowed by state law.”
As of 2004, when the IDEA was reauthorized, whether a state has its own timelines for certain aspects of the special education process or not, federal law now establishes mandated minimums and maximums. If state law does not require the provision of student records prior to an IEP meeting or within a specified number of days, it doesn’t matter. Federal law mandates that parents (or those acting in the legal capacity of parents, including emergency foster care status and legal guardians) be granted access to student records within 45 calendar days at the most, but definitely before any scheduled IEP meetings.? (See 34 CFR Sec. 300.613.)
Giving parents access to records is not the same thing as providing copies, however. Copies may be provided and school districts can charge photocopying fees so long as the imposition of fees do not prevent the parents from receiving the copies (see 34 CFR Sec. 300.617). What this basically means is that if the school districts provide photocopies and wish to charge photocopying fees, those fees must be waived if the parents can’t afford to pay them since the imposition of photocopying fees would prevent them from obtaining the copies due to their economic hardship.
Arkansas’ Special Education Rules and Regulations can be found at http://arksped.k12.ar.us/sections/rulesandregulations.html. Arkansas defaults to the federal standards for the provision of parent access to student records.
Arkansas’ regulations require the provision of copies of student records if failing to provide them would otherwise deny parents access to those records. Such might be the case if the parents lacked transportation to go to the school site or district offices to review the records on site, if the amount of time necessary to read and review all the records would exceed the length of a school day or business day and the parents would need to take the records home to continue to review them, or if the parents work or care for children during the day and cannot take off to go access the records at a district location.
In a situation like this, it would by highly unlikely that the parents would be able to review the entire file with comprehension in one sitting, much less with school site and/or district personnel hovering over their shoulders. Plus, if the parents decide to file for due process or file compliance complaints, they would need copies of the records to review and possibly submit as evidence.? In this case, the provision of copies of the records, as opposed to simply granting access to them at a district location, is warranted.
Ms. Reynolds reported that a temporary placement IEP meeting was held on October 15th, nearly 2 months after the school year started. The reason she requested the IEP meeting was that Zakh had been previously placed in a residential facility and facility personnel believed that he could not be appropriately transitioned to a less restrictive setting without 1:1 aide support. Staff at Beard Elementary allegedly refused to provide aide support via his IEP.
20 USC Sec. 1414(d)(2)(C)(I) requires that when students transfer within a state, the receiving school district “…shall provide such child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents until such time as the local educational agency adopts the previously held IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State law.” [Emphasis added.] Again, this is a federal minimum standard and the states are free to add additional protections according to their own implementation methodologies. The Arkansas regulations mirror the federal requirements. (See Sec. 8-03.3)
While, procedurally, Fort Smith had until such time as a new IEP was developed to implement the last IEP in effect from Zakh’s prior placement, the prior IEP was written for a residential placement, not a public school placement. Fort Smith could not implement the last IEP without placing Zakh in a residential placement at the District’s expense. That clearly was not done. Given that it could not implement the IEP as written, it had no choice but to revise the IEP. For the period from August 18 to October 15, the District failed to implement the IEP as written, which is a procedural violation. However, the bigger issue is that a FAPE was denied during that same period on the basis that Zakh’s IEP was no longer appropriate to his then-current placement and needs.
At the October 15, 2009 IEP meeting, Ms. Reynolds says she requested a Functional Behavioral Analysis (“FBA”) and positive behavior intervention plan for Zakh, but no behavior plan was ever forthcoming. On October 30, 2009, Zakh experienced a behavioral meltdown related to his autism.
In the absence of a positive behavior intervention plan that would have helped to prevent the meltdown in the first place and given specific guidance to school personnel as to how to respond if the meltdown had nonetheless occurred, staff failed to prevent the behavior from escalating and then resorted to physical restraints when Zakh passed the point of no return. Staff received minor injuries in the course of restraining the 11-year-old child.? Instead of responding to the situation appropriately, school site staff called the police and had the cognitively impaired, autistic youngster taken away in handcuffs and charged with felony assault as though he had attacked people with criminal intent rather than struggled during an unlawful restraint, thereby contributing to the inadvertent injury of school personnel.
Zakh’s current home-school placement resulted from a disciplinary removal and he has been suspended for 12 school days this year. This constitutes as a change of placement pursuant to Arkansas regulations. This makes the need for a functional behavioral analysis mandatory at this point.
If an FBA was conducted previously but failed to result in a positive behavior intervention plan, then the family could disagree with the district’s FBA and ask for an Independent Educational Evaluation (“IEE”) in the area of behavior as a corrective remedy. Clearly any assessment of his behavior performed failed to result in a legitimate offer of FAPE since it failed to produce a positive behavior intervention plan.? It’s more likely, however, that the FBA hadn’t been done. If it remains outstanding, then the family may be stuck with a District assessment at this point, though it’s long overdue if so.
The fact that this family has a court date on January 12, 2010 on the felony assault charges means the charges obviously haven’t been dropped and Fort Smith schools are prosecuting handicapped children for manifesting the symptoms of their handicapping conditions rather than providing them with a FAPE. What is more, in addition to the claims that this family most likely has under the Individuals with Disabilities Education Act (“IDEA”), they probably have actionable claims under Section 504 of the Rehabilitation Act of 1973 for discrimination on the basis of handicapping conditions. While the IDEA claims can only pursue remedy in the form of special education services, the 504 claims can pursue monetary damages.
The District’s board of education, which is comprised of Dr. Deanie Mehl, Ms. Shannon Blatt, Mr. Wyman R. Wade, Jr., Ms. Jeannie Cole, Ms. Barbara Hathcock, Dr. David Hunton, and Ms. Yvonne Keaton-Martin should be mortally ashamed and embarrassed right now, and are well-advised to keep their eyes on the horizon for a big, fat legal expense that should never have had the occasion to develop.
If you are an attorney in Arkansas who practices special education law on behalf of children with disabilities, please register with the Council of Parent Attorneys and Advocates at http://www.copaa.org so that Arkansas parents in situations like these can find you. I will be attending the March 2010 COPAA conference. If you will be attending as well, please sign up for Text Alerts so that I can connect with you in person at the conference.
Click here to download the podcast version of this article.