Case Update: Failure to Follow IEP Costly to District

By Attorney Malina Piontek

recent federal court decision from the Eastern District of Wisconsin is a reminder to all administrators of the need to develop appropriate IEPs – even when a parent refuses to participate - and then to follow them with fidelity, or your district could be faced with hefty penalties. Wisconsin Federal District Court Judge Lynn Adelman upheld an administrative law judge’s decision in a due process hearing which ordered the Grafton School District to pay $78,000 per year for two years of private school tuition and costs associated with the student attending an out-of-state school. The family’s attorney said that the district owes the family at least $260,000 in tuition, costs and attorney fees.

JL’s Academic Career and IEPs

The student, JL, had been medically diagnosed with ADHD and an anxiety disorder and struggled with writing throughout all of his years in school. He was given an IEP in 7th grade. In the spring of 8th grade, his mom requested that the district evaluate JL for speech/language impairment and related services. An independent evaluator conducted the evaluation and suggested that the IEP Team add speech and language as a related service. She also reported that JL’s weaknesses in phonological processing were characteristics of Dyslexia. In addition, a neuropsychological evaluation revealed that his writing had not progressed at an age-expected rate since he was seven years old. 

The IEP Team met in June, 2016, to reevaluate JL and develop an IEP for his upcoming freshman year. The team decided that JL did not meet the criteria for speech-language impairment; yet they included 40 minutes of speech and language services per week in his IEP. The IEP also included direct instruction in written language, daily supervised study, and a daily assignment notebook accuracy check. Finally, the IEP included four goals addressing writing, organization, following directions/staying on task, and speech and language skills.  

In May, 2017, at the end of JL's freshman year, his mom asked the case manager to evaluate JL's writing. Apparently this didn’t happen. The IEP team met later in May to review and revise JL’s IEP for his sophomore year, which remained largely the same, except for one noteworthy change - it cut speech and language services in half. It also added two new annual goals, in addition to carrying over the prior four goals without modification. In addition, the updated IEP required that quarterly reports about JL's progress be provided to his mom; however, the case manager never provided the quarterly reports to her.

In November, 2017, concerned about his English grades (Ds and Fs) and incomplete assignments, JL’s mom asked the IEP Team to reconvene. An IEP team meeting was held, but no revisions were made to the IEP. JL’s mom emailed the school requesting that JL’s writing be evaluated three times between November, 2017, and March, 2018, with no response from the school. In April, 2018, JL’s writing was finally evaluated, showing it was at a 3rd to 4th grade level. 

During the 2017-2018 school year, JL’s co-teachers - which included his case manager - did not take his struggles with writing into consideration when grading him in American literature and composition. Moreover, his case manager used Google Docs to assist JL with writing assignments for that same class. It is unclear whether this was in lieu of providing some of the supports set forth in the IEP. To make matters worse, JL did not use the assignment notebook, and by the end of the year, he had 44 missing assignments.

The IEP Team met in May, 2018, to review and revise JL’s IEP for his junior year. The team completed its review – determining that JL had not achieved three of his six goals – but did not finish developing JL’s IEP, which was still in draft form at the end of the meeting. There were not many changes from the 2017-2018 IEP, except that the assignment notebook was removed. The team discussed reconvening in June to complete the IEP.

The Breaking Point for JL’s Mom

After the meeting, JL showed his mom how to see editing history in Google Docs. Based on what she saw, she believed that the case manager had written or altered much of JL’s work, which really upset her. She reported this to police, the DPI, and the district.  The district investigated and found the complaint to be unsubstantiated; and the police closed its case after concluding it was not a criminal matter.

At the end of May, 2018, the school contacted JL’s mom advising that the district was legally required to complete JL’s IEP by May 31, but that since it wasn’t completed, they would use the draft as a place holder until the IEP team reconvened to finish its work. 

While the school did not contact JL’s mom in June to reconvene the IEP Team meeting, it did reach out to her in mid-August asking for dates she would be available to meet. The parent responded expressing her frustration with the case manager and the investigation, but did not provide dates on which she was available to meet. In fact, she said that she didn’t want the case manager anywhere near her son, and until the district fired him, there was no need to have an IEP meeting. 

A few days later, JL’s mom sent the district an email saying she intended to remove JL from school and place him at a private school in southern Illinois, and that she would be seeking reimbursement for the cost of attending the private school. The district replied to the email asking if the parent would be interested in a facilitated IEP or mediation, which she declined.

Due Process and Appeal to Federal Court

In January, 2019, JL’s mom filed a request for a due process hearing, seeking reimbursement from the district for tuition and transportation costs (which included flights for JL to and from the school). An administrative law judge (ALJ) conducted five days of hearing resulting in a determination that the district 1) did not provide JL with a FAPE during the 2017-18 school year or offer him one for 2018-19; and 2) was obligated to reimburse the parent for the costs of JL's private school. The district appealed.

Judge Adelman began his analysis by citing the FAPE standard established in the US Supreme Court’s Endrew Fdecision. That standard requires that an IEP be reasonably calculated to enable a child to make progress adequate in light of the child’s circumstances. In the case before him, Judge Adelman considered not just whether the IEP was adequately written, but also whether it was adequately implemented, because a material failure to implement an IEP violates the IDEA. A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP.  Moreover, a student's lack of progress during the year may be evidence that an implementation failure was material and deprived the student of a FAPE.

Judge Adelman upheld the ALJ’s determination that the district did not provide JL with a FAPE during the 2017-18 school year because his IEP wasn’t adequately implemented as demonstrated by facts including: 

  • JL’s daily assignment notebook wasn’t checked
  • JL’s lack of progress toward goals despite the fact that the goals for JL's 2017-2018 IEP were very similar to those from the year before 
  • the case manager did not provide JL’s mom with quarterly progress reports that were required under the IEP 

In addition, Judge Adelman was troubled that the district cut JL’s speech and language services in half, despite his lack of progress during the previous year; and that JL received F and D grades on writing assignments in the first semester yet the district did not assess him even when JL’s mom repeatedly requested to have his spelling and writing level evaluated.

Judge Adelman next turned to the issue of the IEP the district offered to JL for the 2018-2019 school year. The district pointed to JL’s mom’s behavior as obstructing the IEP Team’s ability to finalize the IEP. Judge Adelman, however, rejected the invitation to blame the mom’s lack of cooperation in light of her history of being involved in the IEP process over the years. He also refused to look outside the four corners of the draft IEP document, but instead evaluated the appropriateness of the IEP based on only what was contained in the document itself. In other words, conversations or promises made that were not yet incorporated in the IEP itself didn’t matter when deciding whether the district offered a FAPE to JL. Finally, Judge Adelman agreed with the ALJ that JL’s mom’s non-participation in the IEP process did not prevent the district from scheduling another IEP meeting - with or without her – to finish the IEP process. 

Judge Adelman also considered another US Supreme Court decision which stands for the proposition that when a public school fails to provide a FAPE and a child's parents place the child in an appropriate private school without the school district's consent, a court may require the district to reimburse the parents for the cost of the private education.  Judge Adelman affirmed the ALJ’s conclusion that the services JL received at the private school were appropriate and upheld the award of reimbursement for tuition and transportation.

Take Aways

This case should be a reminder of the importance of ensuring that student IEPs accurately reflect the special education and related services students will actually receive. Staff should implement IEPs with fidelity, and if something is interfering with the ability to implement the IEP, it shouldn’t be ignored. For example, if a student is not complying with some part of the IEP, such as using an assignment notebook, staff cannot wash their hands of it and lay blame on the student. Rather, the IEP Team should meet to determine the cause of the behavior, and whether there is a need to revise the IEP. It is vitally important to encourage staff to communicate if they are having any difficulty implementing an IEP.  

In addition, school staff should be open to parent requests for additional evaluations or assessments. Yes, we are all busy, but conducting another assessment could be enough to prevent a parent from pulling the student out of school and enrolling him/her in a private school.  And be sure that IEPs are completed in a timely fashion. A parent’s refusal to schedule or attend an IEP meeting is not a valid reason to stop the process but is in fact a violation of the IDEA. Finally, these can be complicated matters; administrators should touch base with district legal counsel with their special education questions. 

This article was prepared by Attorney Malina Piontek, AWSA’s Level I Legal Services Provider. You may direct your Level I call-in questions to Malina at 608-497-3037 or email her at [email protected] This article was designed to provide you with general authoritative information and with commentary as a service to AWSA members. It should not be relied upon as legal advice. 

 

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