Hearing Officers Rule to Ensure Direct Teacher Involvement and Proactive Use of Functional Behavior Assessment

by Ron Greiner

Editors Note: This article originally appeared in the June 2002 issue of Newsline. This is the second column on Dispute Resolution offered by the Michigan Department of Education (MDE) Office of Special Education and Early Intervention Services (OSE/EIS). This column will appear regularly in Newsline. OSE/EIS is providing information in this feature with a reminder that each due process hearing decision and each complaint investigation decision is based solely on factual circumstances, as presented in individual cases. Specific cases presented here should not be the basis of generalizations about dispute resolution. The OSE/EIS received several comments on the feature that appeared in the last issue and appreciates the perspectives that were shared.

Q: What precipitated the request for a hearing?

A: The background information is contained in the local hearing officer (LHO) decision. The LHO noted that the 12-year-old student presented complex physical, mental, behavioral, health, and education needs and was eligible for special education services from early childhood. The student was treated by a variety of mental health professionals and was placed into two psychiatric/short-term residential settings. Various medications were tried. After discharge from the second facility, various individualized education programs (IEPs) placed the student into a special education classroom in an age-appropriate facility and then a center program. The center program used seclusion for inappropriate behavior.

Dissatisfied, the parent requested a due process hearing. The parent and the district used mediation to develop a new IEP. The IEP placed the student with a one-on-one paraprofessional in an isolated setting at a middle school for 20-25 hours per week. The student was assigned to a special education teacher who was indirectly involved with the student. The student also received related services. The district implemented the IEP, and the parties agreed that the student made instructional gains. The next fall, the parent requested a new individualized education program team (IEPT) meeting. The new IEP increased the amount of special education and related services the student was to receive, and the parent and the district agreed. Then the parent requested another IEPT meeting, which the district convened.

Q: What did the district propose for the student?

A: At the IEPT meeting, the district determined that the student was eligible for special education services for students with educable mental impairment (EMI), with a secondary eligibility for services for students with physical or other health impairments (POHI). The IEP was essentially the same as the previous IEP, 20-25 hours per week with a one-on-one paraprofessional in an isolated part of the middle school. A special education teacher of students with emotional impairment (EI) was to provide overall instructional supervision. The student was also to receive related services [i.e., teacher consultant (T/C), occupational therapy (OT) and adaptive physical education (PE)].

Q: What were the disagreements?

A: The parent requested a due process hearing, stating that there was no special education eligibility category that accurately described the student. The parent also disagreed on the grounds that the paraprofessional was the primary person delivering instruction to the student. After agreement regarding who would be the LHO, prior to the written decision, the student assaulted the paraprofessional. Mental health professionals recommended another hospitalization, but the parent declined. The district requested the LHO to consider the student as dangerous, and the LHO identified an interim alternative educational setting (IAES). The parent declined the IAES and kept the student at home.

Q: What did the LHO decide?

A: By the time the LHO issued the decision, the district wanted a more restrictive setting than that identified in the contested IEP. Because the district changed its proposal, the LHO placed the burden of proof on each party. The LHO ordered:

1. Eligibility as EMI/POHI (noting that Michigan's emotional impairment eligibility rule excludes persons whose "behaviors are primarily the result of intellectual, sensory, or health factors").
2. Placement into an EI program, with a one-on-one paraprofessional, and an additional paraprofessional assigned to the classroom, for 25 hours per week.
3. Instruction directed primarily by the teacher, with assistance delivered by the paraprofessional.
4. Construction of a soundproof area in the classroom to be available to the student and the paraprofessional.
5. Limitations on the number of students in the classroom at one time.
6. Related services.
7. Development of a functional behavior assessment (FBA), behavior intervention plan (BIP), and crisis intervention plan.

Q: What did the state hearing officer decide?

A: The parent appealed for a state review. The state hearing officer (SHO) ordered:

1. Eligibility as EI because of the history of psychiatric disorders and the preponderance of behavioral issues in previous placements.
2. Implementation of LHO decisions 2-7, with some modifications.
3. Educational compensation, consisting of a summer school program, because the district did not provide the student with a free appropriate public education (FAPE) in two previous district placements.
   
   Specifically, the district did not:

   a. Provide the student with instruction from a special education teacher, with adequate lesson plans.
   b. Conduct a FBA/BIP as a proactive response to the frequency and severity of the student's behavior problems. This resulted in the excessive use of seclusion as punishment.

4. Educating the student alone, if the student cannot be educated in the special education classroom.

Q: Where does the term "compensatory education" come from and what does it mean?

A: Section 300.660(a) of the final regulations implementing IDEA requires each state to adopt written procedures to resolve complaints. Section 300.660(b) is entitled "Remedies for Denial of Appropriate Services." Section 300.660(b) requires that, if a complaint investigation concludes that a district failed to provide a student with appropriate services, the resolution of that complaint must include a remedy for the denial of services. The term most commonly used to describe remediation for a denial of services is "compensatory education."

Q: How has Michigan implemented this requirement related to compensatory education?

A: The initial draft of Michigan's Complaint Procedures for Special Education assigned responsibility for awarding compensatory education to each student's IEP team. However, when this draft was submitted to consumers for public comment, Michigan's Special Education Advisory Committee (SEAC) indicated that it wanted the Michigan Department of Education to direct compensatory education. Therefore, the final Complaint Procedures indicate that the Office of Special Education and Early Intervention Services (OSE/EIS) has this responsibility.

Q: How has the OSE/EIS managed compensatory education?

A: First, the OSE/EIS compliance unit developed a framework to use in guiding decisions about when and how to award monetary reimbursement and/or compensatory education.

The framework begins with the perspective that no matter how similar any two students with disabilities may initially appear (e.g., age, type of eligibility, type of program/related services needed and provided, school district, etc), each is, upon closer review, unique. This uniqueness is captured, in some respect, in the specificity of each student's IEP. But even if two IEPs were nearly identical, chances are high that each student's response to that IEP would be unique.

Therefore, any decisions about compensatory education for a denial of services for a student will depend on his/her specific factual circumstances, his/her IEP, and, ultimately, the student him/herself.

The framework notes that compensatory education was not developed to be an abstract remedy nor to punish a district. It was designed to re-establish equity-to make up for that which the parties, through the IEP, agreed should have been done. The framework indicates that compensatory education applies only to educational loss, not to other forms of loss. OSE/EIS considers several factors, including the following:

• What was the actual loss (e.g., type of program/service that was not provided, amount/frequency that was not provided, etc.)?
• Was the loss solely the fault of the district, or did parental actions contribute to the loss?
• What was the impact of the loss on the student? (From the parent's perspective? From the district's perspective?)
• What's an appropriate remedy? (From the parent's perspective? From the district's perspective?)
• What's the perspective of staff most familiar with the student?
• Did the parent and the district already identify some measures to make up for the loss?

Second, the OSE/EIS has been directing monetary reimbursement and/or compensatory education for students when the student did not receive some (or all) of the special education program and/or related services on the IEP.

The determination that a student was denied programs/services occurs through the complaint investigation process. Either the intermediate school district (ISD) or the OSE/EIS can decide that a district did not provide a student with the required programs/services.

From January 1, 2001, through December 31, 2001, the OSE/EIS awarded compensatory education to students in approximately 23 percent of all of the cases in which a violation of any type was found involving a denial of services (it is important to remember that there are times when a violation occurred, but no student was denied services).

Examples of compensatory education ordered include requiring districts to make up missed services (before, during, or after school hours); providing tutoring or summer school; and reimbursing parents for expenses they incurred.

For more information, contact:
Ron Greiner
Office of Special Education and Early Intervention Services
P.O. Box 30008
Lansing, MI 48909
(517) 335-0461
(517) 373-7504 fax
GreinerR@michigan.gov

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