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Special Educationin the Modern Age

What Does It Meanto Need Special

Education?

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What’s On the Agenda . . . Eligibility for Special Education:

The Legal Standards Qualifying Disabilities Need for “Special Education

and Related Services” Determining the Need

for Special Education 9th Circuit’s Standard Court and OAH Illustrative

Case Decisions

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I. Determining Eligibility for Special Education:The Legal Standards

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Definition of Eligible Student To be eligible under IDEA and California

law, student must:1. Meet the definition of at least one of 13

identified disabilities; and2. Require special education and related

services as a result of such disability Our session focuses on the second

criteria

(34 C.F.R. §300.8; Ed. Code, §56026)

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The 13 Eligibility Categories1. Autism2. Deaf-Blindness3. Deafness4. Emotional Disturbance5. Hearing Impairment6. Intellectual Disability7. Multiple Disabilities

(34 C.F.R. §300.8; Cal. Code Regs., tit. 5, §3030)

8. Orthopedic Impairment 9. Other Health Impairment10. Specific Learning Disability 11. Speech or Language

Impairment12. Traumatic Brain Injury13. Visual Impairment, including blindness

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The 13 Eligibility Categories Law defines each of the 13 disabilities

For example, IDEA defines “visual impairment” as “impairment in vision that, even with correction, adversely affects a child’s educational performance”

Note: Most disability definitions also includes requirement that the disability have “adverse effect” on “educational performance”

Neither term is defined by lawCourt and ALJs interpret on case-by-case

basis

(34 C.F.R. §300.8; Cal. Code Regs., tit. 5, §3030)

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Adverse EffectAdverse Effect on

Educational Performance Included in Definition:

1. Autism 2. Deaf-Blindness 3. Deafness 4. Emotional Disturbance 5. Hearing Impairment 6. Intellectual Disability 7. Multiple Disabilities8. Orthopedic Impairment 9. Other Health Impairment

11. Speech or Language Impairment

12. Traumatic Brain Injury13. Visual impairment, including

blindness

Adverse Effect on Educational Performance Implied in Definition:

10. Specific Learning Disability

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ExceptionsIDEA: Student may not be found eligible if

– Determinant factor is:

Lack of appropriate instruction in reading or math; or

Limited English proficiency; and Student does not otherwise meet the eligibility criteria

under 34 C.F.R. § 300.8(a) California Ed Code adds: No eligibility if educational

needs are due primarily to temporary physical disabilities; social maladjustment; or environmental, cultural, or economic factors Unless student otherwise meets eligibility

requirements(34 C.F.R. §300.306(b); Ed. Code, §56026, subd. (e))

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Remember, even if disability definition is satisfied, student must require special education in order to be found eligible

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So What Is Special Education? IDEA definition:

“Specially designed instruction”Provided “at no cost”

to parents Intended to meet

“unique needs” of student

(34 C.F.R. §300.39(a)(1))

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So What Is Special Education? Special education can include:

Instruction conducted in classroom, home, hospitals and institutions, and other settings

Instruction in physical education

(34 C.F.R. §300.39(a)(1))

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“At No Cost” and “Unique Needs” “No cost” does not preclude incidental fees

normally charged to all students as part of general education program

“Unique needs” not defined by law 9th Circuit: More than academic subjects; can

also include “social and emotional needs that affect academic progress, school behavior and socialization”

(34 C.F.R. §300.39(b)(1); County of San Diego v. California Special Educ. Hearing Office (9th Cir. 1996) 24 IDELR 756)

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And What About “Specially Designed Instruction”?

IDEA definition:Adapting, as appropriate to student’s

needs, thecontent, methodology or delivery of instruction to:

Address student’s unique needs resulting from his/her disability; and

Ensure student’s access to general curriculum so that student can meet educational standards that apply to all students within district

(34 C.F.R. §300.39(b)(3))

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And What About “Specially Designed Instruction”? (cont’d) Adapted or modified content = knowledge and skills

being taught to student are different from what is being taught to typical same-age peers

Adapted or modified methodology = different instructional approaches are used to teach content to student than are used for typical same-age peers

Adapted or modified delivery = way in which instruction is delivered to student is different than delivery method for typical same-age peers

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And What About “Specially Designed Instruction”? (cont’d)

Distinguish “specially designed instruction” from “accommodations”

Accommodations Do not change what is being taught Do not alter strategies used to teach content Do not change how instruction is delivered

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And What About “Specially Designed Instruction”? (cont’d) Determining whether specific intervention is

“specially designed instruction” can be difficult “Fuzzy line” between general and special education

One possible test: “Specially designed instruction” when: Adaptations in content methodology or delivery; Necessary, rather than beneficial, for student; Designed or implemented by certified special

education personnel; and Not available regularly in general education(West Chester Area School Dist. (SEA PA 2001) 35 IDELR 235)

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And What About “Specially Designed Instruction”? (cont’d) No definition of “specially designed

instruction” in California law

But Ed Code provides: As prerequisite to eligibility, student must need

instruction, services, or both, that cannot be provided with modification of the regular school program to ensure provision of FAPE

Student may be referred to special education only after resources of the regular education program have been considered and, where appropriate, utilized

(Ed. Code, §56026, subd. (b); Ed. Code, §56303)

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Is It “Specially Designed Instruction” or “Differentiated Instruction”? Case Example:

Dispute over OHI eligibility Parents claimed assistance that Student received

from teacher (reading directions, extra testing time, etc.) was “specially designed instruction”

District characterized it as “differentiated instruction”

Court agreed with District Teacher testified she would have made similar

changes to assist other students Not a different method of teaching and not

“specially designed” for Student; done at teacher’s discretion

(Ashli and Gordon C. v. State of Hawaii, Dep’t of Educ. (D. Hawaii 2007) 47 IDELR 65)

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A Word About Related Services “Transportation and other developmental,

corrective and supportive services as may be required to assist student in benefiting from special education”

Stay tuned – We focus on related services in our next session

(34 C.F.R. §300.34; Ed. Code, § 56363)

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Special Education vs. Related Services

If student meets definition of one or more disabilities identified at 34 C.F.R. § 300.8,but only needs related services and not special education: Student is not eligible under IDEA

Except if related service that student requires is considered “special education” under state standards (e.g., speech and language therapy)

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II. When Does a Student “Need” Special Education

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The 9th Circuit Says . . .

Hood v. Encinitas Union School District (2007) Court applied U.S. Supreme Court’s

Rowley “benefit standard” for FAPEto eligibility/need for special education

If student is receiving educational benefit in the general education setting, he or she is not entitled to special education

(Hood v. Encinitas Union School Dist. (9th Cir. 2007) 107 LRP 26108)

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The 9th Circuit Says . . . Hood v. Encinitas Union School District

(2007) The Facts:

10-year-old Student performed at grade level or above in her classroom, but had difficulty with completing tasks, turning in homework, and organization

District offered Section 504 plan with various accommodations (preferential seating, homework checks, visual supports, etc.)

Parents withdrew Student, placed her in NPS, then filed for due process seeking reimbursement for tuition and assessments

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The 9th Circuit Says . . . Hood v. Encinitas Union School District

(2007) The Decision:

Case ultimately reached 9th Circuit, which applied Rowley and found no eligibility under either SLDor OHI categories

Reasonable for IHO to conclude that Student’s impairment could be accommodated through District’s Section 504 plan

“The law does not entitle [Student] to special education if we find that her discrepancy can be corrected in the regular classroom”

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Now let’s look at some post-Hood cases . . .

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Need for Special Education: Autism Case Example: Stanislaus USD v. Student

The Facts:7-year-old Student diagnosed with autism at

age 2Received early intervention services through

NPS, including 1:1 “intensive behavioral treatment”

Attended general ed kindergarten and first grade with 1:1 aide, although District believed aide was no longer necessary

Behavior analyst had recommended “fading” aide when Student was in kindergarten

District sought to exit Student from special education

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Need for Special Education: Autism

Stanislaus USD v. Student (cont’d) The Decision:

ALJ backed District’s conclusion that Student no longer needed special ed to succeed in school

Evidence of remediation was significantTutors and aide “did little or nothing” in classroom

to support Student and she no longer required those services, nor did she require behavioral goals, supports or specialized instruction

Due to Student’s medical diagnosis of autism, ALJ advised District to monitor her closely for any regression

(Stanislaus Union School Dist. v. Student (OAH 2013) Case No. 2013050308, 113 LRP 52113)

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Exiting Students from Special Ed

Practice Pointer

To make sound and supportable decision about whether to exit student from special ed, IEP team should:

Review multiple sources of data to gauge student’s academic and nonacademic progress

Thoroughly document all sources of evidence, including teacher observations

Keep parents updated and informed on basis of decision and, if student is to be exited, the process that will be used to monitor student for any signs he or she is struggling without special ed

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Need for Special Education: Autism Case Example: Student v. La Mesa-Spring

Valley SD The Facts:

7-year-old Student had tantrums at home, failed to follow instructions, was uncomfortable in large groups and was distracted by vacuum cleaner

Student was successful at school and stayed on task

Parents’ private assessor diagnosed Asperger syndrome and recommended reorganized learning environment (separating desk from others to reduce distractions), increased time to complete work, and employment of self-management strategies in the classroom

District found Student was not eligible for special ed

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Need for Special Education: Autism Student v. La Mesa-Spring Valley SD (cont’d)

The Decision:ALJ upheld District’s determination that

Student was not eligibleRegardless of whether Student met legal

definition of autism, no indication he needed special education as a result of his disability

Even if Student required all recommendations made by independent assessor, those recommendations could be implemented within the general ed classroom and were not “specially designed instruction”

(Student v. La Mesa-Spring Valley School Dist. (OAH 2009) No. 2009050311, 109 LRP 54643)

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Need for Special Education: Emotional Disturbance

Case Example: L.J. v. Pittsburg USD The Facts:

Fifth-grade Student with history of behavior problems

District previously had referred Student for counseling/therapy services, developed BSP and assigned behavior aide

IEP team concluded Student was not eligible for special ed and could succeed when given classroom structure

Second finding of ineligibility after Student had been hospitalized over summer for threatening to harm himself/others

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Need for Special Education: Emotional Disturbance L.J. v. Pittsburg USD (cont’d)

The Decision:District Court affirmed ALJ’s decision that

Student was not eligible as ED, as he did not require specialized instruction to benefit from his education

Court disagreed with Parents’ claim that behavioral aide and counseling/therapy were special ed services

Even if aide was special ed, Student did not require aide to succeed

BSP did not go beyond general ed accommodations

Therapy sessions took place during lunchtime

(L.J. v. Pittsburg Unified School Dist. (N.D. Cal. 2014) 63 IDELR 133)

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Need for Special Education: Orthopedic Impairment

Case Example: D.R. v. Antelope Valley Union HSD The Facts:

Student with neurological disorder effecting limbs met IDEA disability criterial for orthopedic impairment

Never found eligible for special ed, but instead was provided with Section 504 accommodations

When attending new two-floor high school, Student had difficulty accessing elevator

District provided “mobility liaison” instead of elevator key

Parents filed for due process and sued for discrimination

ALJ found no IDEA jurisdiction and dismissed DP claim

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Need for Special Education: Orthopedic Impairment D.R. v. Antelope Valley Union HSD (cont’d)

The Decision:Court found no remedy under IDEA because

Parents could not show Student met eligibility criteria (did not need special education)

Cited Hood and concluded Student’s needs were being adequately addressed through classroom modifications (extra time, extra set of textbook), which “were not special, individualized instruction”

While mobility liaison was not adequately meeting Student’s needs, another non-special ed modification (providing elevator key) could meet those needs

(D.R. v. Antelope Valley Union High School Dist. (C.D. Cal. 2010) 55 IDELR 163)

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Need for Special Education: Other Health Impairment Case Example: Student v. Santa Barbara USD

The Facts:Student born addicted to heroin and diagnosed

with ADHD at age 6; not determined eligible for special ed

By seventh grade, Student’s grades and behavior deteriorated

Provided with general ed interventions (“intervention pyramid” system) throughout eighth grade, but behavior worsened and he was failing his classes

SST team made no special ed recommendationAlthough District later found Student eligible,

Parents claimed he should have been found eligible previously

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Need for Special Education: Other Health Impairment Student v. Santa Barbara USD (cont’d)

The Decision:ALJ agreed with ParentsIntervention pyramid and District’s SST process

did not workAccumulating evidence of bad behavior and

poor grades during seventh grade – and especially during eighth grade – demonstrated need for special education and should have triggered referral

District ordered to provide Student with 180 hours of compensatory education

(Student v. Santa Barbara Unified School Dist. (OAH 2013) Case No. 2012080468, 113 LRP 1802)

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But contrast this decision to a case where general education accommodations could have been successful if given a chance to work . . .

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Need for Special Education: Other Health Impairment Case Example: Baldwin Park USD v. Student

The Facts:15-year-old found eligible as OHI (due to ADHD)IEP offered behavior support services, including

1:1 aide for entire school daySix months later, IEP team determined Student

should be exited from special edBehavior specialist concluded Student exhibited

typical behaviors and offered suggestions that could be implemented by teachers

District offered Section 504 behavior plan and supports, but Parents refused

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Need for Special Education: Other Health Impairment Baldwin Park USD v. Student (cont’d)

The Decision:ALJ: Student no longer needed special education

and could receive supports he needed in general ed

Several assessors agreed that behavior aide was not necessary and should be “faded out” to enable Student to become more independent

Social and behavioral issues were not severe and did not interfere with Student’s progress

District was never given a chance to show effectiveness of Section 504-based behavioral supports

(Baldwin Park Unified School Dist. v. Student (OAH 2010) Case Nos. 2010090527 and 2010080694, 110 LRP 71934)

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When Using a Section 504 Plan…

Practice Pointer

To help ensure effectiveness of Section 504 plan:Review plan at least annually – and more

frequently if concerns are raised that accommodations might not be working

If accommodation is changed (or discontinued), closely monitor student’s progress for signs of declining grades/worsening behavior

Make sure accommodations are clearly written so that staff know exact what they are supposed to do

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Need for Special Education: Specific Learning Disability

Case Example: Salinas Union HSD v. Student The Facts:

14-year-old initially classified as ELDetermined eligible as SLD in fifth gradeIEP included pull-out instruction by RSP teacherWhen Student moved to middle school, he

receivedpush-in RSP services

By end of middle school, Student’s classroom performance had improved so significantly that District sought to exit him from special ed

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Need for Special Education: Specific Learning Disability Salinas Union HSD v. Student (cont’d)

The Decision:ALJ approved District’s request to exit StudentBy eighth grade, Student participated in English

and reading classes without needing any assistance from RSP teacher

Enrolled in Algebra support class by Parents, but did not need it

Although Student previously received tutoring at reading clinic, ALJ doubted such tutoring could be considered special ed (and it had been phased out)

(Salinas Union High School Dist. v. Student (OAH 2014) Case No. 2013070582, 63 IDELR 176)

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Need for Special Education: Specific Learning Disability Case Example: Student v. Oakland USD

The Facts:Despite being found not eligible for special ed,

third grader’s reading and related skills were well below grade level

RSP teacher began meeting with Student (individually or in small groups outside of class) to provide remedial instruction in reading and homework completion skills

District reassessed Student in fifth grade, finding he had made progress and was not eligible for special ed

Grandparent challenged eligibility finding, claiming remedial instruction amounted to special ed

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Need for Special Education: Specific Learning Disability Student v. Oakland USD (cont’d)

The Decision:ALJ upheld District’s determinationRemedial instruction provided by RSP teacher

was not “specialized instruction” but instead was District’s version of “informal” RTI

Instruction Student received was directed primarily to “filling holes” mostly due to poor attendance

Student made significant progress, despite Grandparent’s claim that progress “was not enough”

He was able to complete grade level work(Student v. Oakland Unified School Dist. (OAH 2013) Case No. 2013050644, 113 LRP 46297)

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Response to Intervention

Practice Pointer

When using RTI, keep in mind:RTI must be given “reasonable” time to

succeed before referral to special ed, but what is “reasonable” will be shorter if student’s “crisis level” is higher

Setting improvement goals too high or too low can cause frustration and reduce chance of success

Program must be implemented and monitored at appropriate grade-level difficulty in order to make accurate determination of progress

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However, sometimes general education interventions just aren’t enough to address a student’s learning difficulties . . .

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Need for Special Education: Specific Learning Disability Case Example: Student v. Adelanto ESD

The Facts:13-year-old Student was diagnosed with ADHD

and suspected bipolar disorder before enrolling in District, at one point requiring psychiatric hospitalization

Student also struggled academically while being

home schooledDistrict determined Student was not eligible and

placed him in sixth grade general ed classHowever, Student was pulled out for RSP

instructionStudent subsequently found eligible as ED, but

Parents claimed he should have been eligible earlier as SLD

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Need for Special Education: Specific Learning Disability Student v. Adelanto ESD (cont’d)

The Decision:ALJ agreed with Parents, finding District denied

FAPE Pull-out resource program was special ed and

Student’s SLD could not have been addressed successfully through modifications to general classroom

ALJ rejected District’s reliance on Hood, finding that Student was already below grade level when he enrolled and he showed virtually no improvement

Student awarded 324 hours of comp ed(Student v. Adelanto Elementary School Dist. (OAH 2008) Case Nos. 2008060702, 2008050846 and 2008080551, 108 LRP 69424)

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Take Aways . . . As cases show, determining need

for special education can be difficult, especially when studentis receiving interventions ingeneral ed setting

Ask: Are the interventions effective under

Hood benefit analysis? Could the interventions be

considered specially designed instruction?

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .