MEMO TO SUPERINTENDENT 1

Kevin Quinn

University of New England

EDU 720: Special Education Law

Module 7: Memo to Superintendent

Procedural Safeguards and Due Process

December 10, 2017

MEMO TO SUPERINTENDENT 2

WASHINGTON MIDDLE SCHOOL

A GLOBAL STUDIES AND COMMUNICATIONS SCHOOL
1225 N. BROAD ST; MERIDEN, CONNECTICUT 06450
TEL: 203-235-6606 FAX: 203-235-6040

RAY SOUTHLAND, PRINCIPAL RACHEL STAIR, DIRECTOR OF GUIDANCE

DANIEL CORSETTI, ASSISTANT PRINCIPAL JILL SARCIA, COUNSELOR
JESSICA SHOWERDA, ASSISTANT PRINCIPAL NICOLE BOURGELAS, COUNSELOR

Dear Mr. Benigni,

I am writing to inform you that the parents of one of our special education students have hired an

advocate and filed for due process. As part of their filing process, the parents have made demands as what they

would like to see implemented for their student with regards to an additional identification, personnel, services

and accommodations.

The parents want their student to be identified with ADHD (under Other Health Impairments) in

addition to being currently identified with learning disabilities issues. For the current school year, the student

has received several D’s on her report card. Teachers are reporting that she is often fidgety in class, interrupting

other students when they are speaking and showing up for class without her books and other materials.

Furthermore, the teachers are also reporting that the student needs frequent cueing to remain on task when

working on assignments in the classroom. While the parents cannot mandate that the child receive this

designation, they may have a valid claim for testing to be done here because the special education teacher has

not adequately investigated the source of these behaviors. The special education and regular education teacher

stated at the student’s most recent IEP meeting that it was their belief that the student’s behavioral issues, lack

of progress towards her IEP goals and her low grades were due to lack of effort and interest on the part of the

student and not the result of attention issues, but no formal testing has been done to rule out Other Health

Impairments due to ADHD.

The IEP team needs to determine whether or not the behaviors are impeding the students learning.

Assessment here would serve two purposes, “(a) to determine a student’s eligibility for special education

services and (b) to determine the student’s educational needs for planning a student’s IEP” (Yell & Crockett,
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2011 as cited in Yell, 2016, p. 188). Failure to access a student could be considered a denial of a FAPE by the

school, and, similarly, failing to respond to a parent’s request for an IEE (Independent Educational Evaluation)

in a timely manner would be a violation of IDEA. At the student’s last PPT, the parents requested a

comprehensive evaluation to determine if the student had ADHD, and the school did not comply with this

request. Moreover, the school denied the parent’s request for additional services and a formal behavior plan

stating that it is their belief that the student’s actions were not caused by her disability, and her behavior was

under her control. The school provided no data to support their conclusion.

However, since the current school year has begun, the student’s behaviors have escalated. She was

suspended for three days in October for swearing at a teacher and suspended again later that month for five days

after an altercation in the cafeteria with another student that involved yelling and swearing. Within two weeks

of the second incident she was suspended again for another five days for swearing again at a teacher. A

manifestation determination was not held. The student was thereby denied due process. The Supreme Court

“ruled that students had the right to at least minimal due process protections in cases of suspensions” (Yell,

2016, p. 298). Because the student is an identified student with an IEP, IDEA 1997 does offer procedural

protections to students with disabilities (Yell, 2016). When special education students exhibit chronic behavior

problems, there is a procedure outlined in IDEA as to how these behaviors are to be addressed. As a result of

the special education teacher’s lack of action in seeking to ascertain an underlying cause for the student’s

behavior, the school may also be liable for monetary damages as a precedent was set in W.B. v. Mantula, 1995,

in which the school district failed to properly evaluate and educate a student with a disability.

The parents are also demanding that the student receives 2 hours per week of occupational therapy

services to meet sensory diet needs related to ADHD as well as for the school to provide tutoring services with a

private tutor of their choosing to work on reading and writing in order to address the lack of progress over the

past year. If it is determined that the school violated the student’s FAPE by not assessing her for ADHD, the

parents may be entitled to compensatory educational services because “compensatory educational services are

designed to remedy the progress lost by students with disabilities because they were previously denied a FAPE

(Blanck et al., 2013; Zirkel, 1991 as cited in Yell, 2016, p. 286). However, the services that are provided need
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to address a student’s educational needs and enable the student to achieve the goals laid out in the IEP. In

IDEA, 2004, “Congress added a requirement that a student’s special education services be based on peer-

reviewed research (PRR) when possible” (Yell, 2016, 225). Therefore, information that is missing from this

case as of now are the specific goals that were identified in the student’s IEP and whether or not occupational

therapy to meet sensory diet needs related to ADHD has PRR support and will help the student meet her goals

identified in her IEP.

At the end of seventh grade, the special education teacher sent an email to the parents of the student to

invite them to a PPT to discuss the student’s performance, but the parents did not respond to the email, and the

case manager did not follow up. The problem here is that “one of the most important of the IDEA mandates is

that parents be equal partners in the IEP process;” therefore, “the school must take steps to ensure that one or

both parents are present at the IEP meeting or are afforded an opportunity to participate,” and the school must

have a record of the diversified attempts to contact the parents (Yell, 2016, p. 230).

Unfortunately, the special education teacher revised the student’s IEP for this current year in May of last

year and reduced the services for writing from 45 minutes per day to 15 minutes per day because she was not

making gains in the special education classroom. The special education teacher made this determination and

changed the student’s IEP to reflect this change without input from the PPT team. However, parental

participation in the development and revision of an IEP is a procedural requirement. And the parents must

receive written notice before a school poses a specific action.

Along the same lines, after the third suspension, and at the parent’s request, the school agreed to hold an

IEP meeting. The special education teacher told the parents at this meeting that she has not collected any formal

data on the student’s progress in reading and writing, which constitutes a substantive violation. She also stated

that she had not changed the student’s reading or writing instruction programs because she felt the lack of

progress was due to the student’s lack of motivation to do well in school. However, when making

determinations about special education services, IDEA requires that “present levels of academic achievement

and functional performance include data from objective tests including ‘criterion referenced tests, standard
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achievement tests, diagnostic tests, or any combination of the above’” (Appendix A. Question 1 of the 1999

Regulations for IDEA 97 as cited in Center for Parent Information and Resources, 2016).

As a result, parents are requesting that the school provides accommodations that they have previously

proposed to be implemented in the student’s IEP. These include shortened in-class assignments, allowing the

student to hand in work late without a penalty, allowing the student to re-take tests that she had failed and

require all teachers to email homework assignments to the parents every day at the end of the school day. One

compromise the team might be willing to propose here is to place more ownership on the student, with teacher

assistance, for responsibility of the homework. In order to help prepare the student for high school, the student

could write down her own assignments and have the teacher sign off in her agenda pad every day

acknowledging that the assignments have been copied down correctly. The parents can then view the

assignment pad.

I will now present my recommendations for an action plan moving forward. The first thing that needs to

be done here is the team must conduct an assessment of the student’s behavior and develop a behavioral

intervention plan “based on the information from the assessment to reduce problem behaviors and increase

socially acceptable behaviors” (Yell, 2016, p. 302). The team needs to ensure that there are specific and

measurable goals on the student’s IEP, and that the student’s special education program is developed around

aiding the student in making progress towards those goals. The school should also propose a mediation to the

parents in order to try and resolve disputes and collaboratively problem solve with a trained impartial third party

because “mediation is an intervening step that may be used prior to conducting a formal due process hearing”

(Lake, 2014 as cited in Yell, 2016, p. 269).

Finally, as a sustainable process to ensure that this does not happen in the future, the district needs to

develop a procedural safeguard for administrators and teachers to use such as notice and consent forms,

flowcharts, procedural safeguard notices for parents etc., for identifying, placement and programming of

students with disabilities (Yell, 2016). All members in the PPT process, administrators, teachers, special

education teachers, need to receive professional development and understand their responsibilities under IDEA.

Furthermore, the school needs to provide opportunities for the parents to feel meaningfully involved in the
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process of their child’s special education program. “One method that school districts could use to ensure such

involvement is to have a staff member assume the role of parent contact who would be responsible for

contacting the parents and helping them prepare for meetings” (Yell, 2016, p.290).

Thank you for your time,

Kevin Quinn

Director of Special Education

Meriden Public Schools

The mission of Washington Middle School, in partnership with family and community, is to facilitate life-long learning in a safe and stimulating
environment that prepares productive citizens to think critically, communicate effectively, and act responsibly in order to succeed in a global and
multicultural society.
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References

Center for Parent Information and Resources. (2017). All about the iep. Retrieved from:

http://www.parentcenterhub.org/repository/iep/

Yell, M. L. (2016). Law and Special Education, The 4th Edition. [Chegg]. Retrieved from

https://ereader.chegg.com/#/books/9780134035925/