SES Spring 2015: The Need for Special Ed

1
Special Education
in the Modern Age
What Does It Mean
to Need Special Education?

2
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

3
I. Determining Eligibility
for Special Education:
The Legal Standards

4
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; and
2. 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)

5
The 13 Eligibility Categories
1. Autism
2. Deaf-Blindness
3. Deafness
4. Emotional Disturbance
5. Hearing Impairment
6. Intellectual Disability
7. Multiple Disabilities
(34 C.F.R. §300.8;
Cal. Code Regs., tit. 5, §3030)
8. Orthopedic Impairment
9. Other Health Impairment
10. Specific Learning Disability
11. Speech or Language
Impairment
12. Traumatic Brain Injury
13. Visual Impairment,
including blindness

6
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 law
Court and ALJs interpret on case-by-case basis
(34 C.F.R. §300.8; Cal. Code Regs., tit. 5, §3030)

7
Adverse Effect
Adverse 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 Disabilities
8. Orthopedic Impairment
9. Other Health Impairment
11. Speech or Language
Impairment
12. Traumatic Brain Injury
13. Visual impairment, including
blindness
Adverse Effect on Educational
Performance Implied in
Definition:
10. Specific Learning Disability

8
Exceptions
IDEA: 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))

9
Remember, even if disability definition is
satisfied, student must require special
education in order to be found eligible

10
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))

11
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))

12
“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)

13
And What About “Specially Designed
Instruction”?
 IDEA definition:
 Adapting, as appropriate to student’s needs, the
content, 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))

14
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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 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

16
 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)

17
 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)

18
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)

19
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)

20
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 FAPE
to 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)

23
 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

24
 The Decision:
 Case ultimately reached 9th Circuit, which applied
Rowley and found no eligibility under either SLD
or 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 2
Received 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

27
 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 significant
Tutors 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)

28
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

29
 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

30
 Student v. La Mesa-Spring Valley SD (cont’d)
 The Decision:
ALJ upheld District’s determination that Student was
not eligible
Regardless 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)

31
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

32
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)

33
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

34
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)

35
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 recommendation
Although District later found Student eligible, Parents
claimed he should have been found eligible previously

36
 Student v. Santa Barbara USD (cont’d)
 The Decision:
ALJ agreed with Parents
Intervention pyramid and District’s SST process
did not work
Accumulating 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)

37
But contrast this decision to a case
where general education
accommodations could have been
successful if given a chance
to work . . .

38
 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 day
Six months later, IEP team determined Student should
be exited from special ed
Behavior 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

39
 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)

40
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

41
Specific Learning Disability
 Case Example: Salinas Union HSD v. Student
 The Facts:
14-year-old initially classified as EL
Determined eligible as SLD in fifth grade
IEP included pull-out instruction by RSP teacher
When Student moved to middle school, he received
push-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

42
 Salinas Union HSD v. Student (cont’d)
 The Decision:
ALJ approved District’s request to exit Student
By 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)

43
 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

44
 Student v. Oakland USD (cont’d)
 The Decision:
ALJ upheld District’s determination
Remedial 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)

45
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

46
However, sometimes general
education interventions just aren’t
enough to address a student’s
learning difficulties . . .

47
 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 schooled
District determined Student was not eligible and placed
him in sixth grade general ed class
However, Student was pulled out for RSP instruction
Student subsequently found eligible as ED, but Parents
claimed he should have been eligible earlier as SLD

48
 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)

49
Take Aways . . .
 As cases show, determining need
for special education can be
difficult, especially when student
is receiving interventions in
general ed setting
 Ask:
 Are the interventions effective under
Hood benefit analysis?
 Could the interventions be
considered specially designed
instruction?

50
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.

51
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.

SES Spring 2015: The Need for Special Ed

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SES Spring 2015: The Need for Special Ed