Cases on Behavioral Issues: 2007

1. Cases on Behavioral Issues: 2007 Jim Walsh Walsh, Anderson, Brown, Schulze & Aldridge, P.C.

2. San Rafael ESD v. California SEHO • Student was autistic. • IHO ruled for the student. • Federal court reversed. • The issue squarely drawn: IS THE DISTRICT RESPONSIBLE FOR IMPROVING BEHAVIOR OUTSIDE OF SCHOOL?

3. San Rafael: Key Quote • “The District argues that, as a matter of law, it is not responsible for ensuring that AK translates behavior skills learned in the classroom to the home or community settings. This court agrees with the District.”

4. San Rafael: Another Key Quote • “AK relies on testimony that AK has difficulty generalizing behavioral skills across settings. While that fact is not in dispute, not every need of a particular child is the legal responsibility of the District.” • 47 IDELR 259 (N.D. Cal. 2007)

5. A.S. v. Madison MSD, 47 IDELR 304 (W.D. Wis.) • IHO ruled for the school and the federal court affirmed. • “the parents had not demonstrated that the behavioral problems in the home are educationally related.”

6. Thompson R2-J SD v. Luke P.48 IDELR 63 (D.Colo. 2007) • IHO ruled for the parent and the court affirmed. • Record showed the staff spent “an inordinate amount of time” dealing with behavioral issues while at school. • The lack of generalization concerned the “most basic like skills.”

7. Thompson: Key Quote • “Finally, while the inability to generalize certain academic skills across environments would not always mean that an IEP is not providing an educational benefit…the lack of generalization of the most basic life skills, such as appropriate behavior, toileting and eating indicate that the educational benefits received…were de minimis.”

8. Lauren P. v. Wissahickon SD48 IDELR 99 (E.D. Pa. 2007) • IHO ruled for the school. Second tier panel reversed. Court affirmed ruling for the parents. • ADHD high schooler was distractible, tardy, disorganized, etc. • No BIP. • Behaviors interfered with learning, were disability-related, should have been addressed with a BIP.

9. S.J. v. Issaquah SD No. 41148 IDELR 218 (W.D. Wash. 2007) • IHO ruled for the school and the court affirmed. • Failure to do a FBA did not render the BIP inappropriate. Was not required. • Requirement that student take meds as prescribed was OK. Parent agreed to it. • Attendance and completion of work problems attributable to mom, not disability.

10. L.G. v. Palm Beach County48 IDELR 271 (11th Cir. 2007) • IHO, federal district court and Circuit Court all rule for the school. • 8-year old SED student. • Parents sought reimbursement for residential placement. • Evidence showed major problems at home, but not at school.

11. Palm Beach: Key Quote “The plaintiffs first presented evidence that in early July 2004, B.G. had a violent episode at home, where he threw things, tried to smash a mirror over his mother’s head, and ran out into the street in traffic. Although this behavior is alarming, we have said that a FAPE consists of meaningful gains inside the classroom, and that the IDEA does not require that the student be able to generalize behaviors from the classroom to the home setting.”

12. What to Make of All That • When a special ed student’s behavior impacts school performance, consider what is causing it, and how to respond. • As for out-of-school behaviors, how basic are they? • Disability label does not drive any of these decisions, but autism supplement will make a difference in Texas.

13. More…. • There are cases in which generalization of skills will be part of FAPE. • Don’t get involved in arguments over what is and is not your legal responsibility. Let your lawyers argue that. • Instead, provide a level of services that benefit the particular student, whatever their situation may be.

14. Finally…. • Relief sought by parent is important in these cases. • Getting reimbursed for private school tuition carries a high burden of proof. • Getting a BIP to address problematic behaviors—not so hard.

15. FBA as Evaluation? “If an FBA is used to evaluate an individual child….to assist in determining whether the child is a child with a disability and the nature and extent of…services that the child needs, it is considered an evaluation…” Letter to Christiansen, 48 IDELR 161 OSEP 2007

16. FBA and IEE? “If the FBA is conducted for individual evaluative purposes to develop or modify a BIP for a particular child…a parent who disagrees with the child’s FBA would have the right to request an IEE at public expense.” Letter to Christiansen, 48 IDELR 161 (OSEP 2007)

17. FBAs as Methodology? “…we believe that if the FBA is intended to assess the effectiveness of behavioral interventions in the school as a whole, the parental consent requirements….would not be applicable because it would not be focused on the educational and behavioral needs of an individual child.” Letter to Christiansen.

18. FBAs to Assess Progress “If an FBA is being conducted for the purpose of determining whether the positive behavioral interventions and supports set out in the current IEP…would be effective…or to determine whether the behavioral component of the child’s IEP would need to be revised, we believe that the FBA would be considered a reevaluation…”

19. FBA: Bottom Line • It is hard to conceive of the circumstances in which a FBA is NOT an evaluation. • Evaluations require consent and are subject to IEE requests. • But remember, review of existing data does not require consent. If that’s all you do, you are not doing an evaluation.