Click Here
to download the Final Order –
Case No. 03-4282E – Polk County (Word file, 238K)
See Excerpts of Final Order Below
Table of
Contents (Click and Go)
1. Please Review
the Final Order
2. Excerpts from the Final
Order
3. Sherwin
Holmes, ESE Director, Declares Victory
4. District Staff Claiming Victory after Judge's Brutal Rebuke of District
IEP Procedures
5. IEP Procedure
Breakdown Not Unusual
1.
Please Review the Final Order:
It is critical for you to review the
order if you have an ESE student in Polk County Schools or elsewhere, and you have been unable
to obtain the education you believe that child needs. If I were to write
the headlines for this story , it would have been: Special Ed Administrators Need Education”. The first paragraph (I
couldn’t get it into one sentence) should read:
An administrative law judge ruled that an ESE
student was denied her procedural due process, the IEP failed to address the
student’s long-term reading difficulty, and the Individualized Education Plan
was horribly written at the insistence of special education administrators and
over the objections of the parents. The school system’s failures were made to
look worse by the significant progress the student made in a private school that
provided the proper educational supports she needed. There was one bright spot for the
Polk County School System, however. The judge ruled the school board did not
have to pay the student’s private tuition because the parent’s did not give the
school system the proper notice before they removed their daughter, the parents
were argumentative in their last IEP, and the private school that worked so well
specialized in educating kids with disabilities. The school
system sees this win as a victory.
Unfortunately, many leaders in the
community, including some on the Polk County School Board, believe the
parents allegations were unfounded after a recent The Ledger article and reports of
victory from the ESE staff. Although the local paper reported
victory for the Polk County School Board, the opposite was true. The Polk
County School District's
policies and procedures were found to be badly broken.
2. Excerpts
from the Final Order:
On page 43:
97.
Respondent (Polk County School Board) violated D.B.‘s (the ESE student's) rights to a FAPE (Free and Appropriate Public
Education) in refusing to define its goals and
objectives with measurable criteria based on an objective standard.
On page 44:
Respondent
may not simply grant services under the umbrella of “varying exceptionalities,”
then refuse to discuss, or for that matter even plan, an individualized program
to meet the child’s unique and special educational needs. The facts of this case
demonstrate how such behavior frustrates, confounds, and discourages parents who
are concerned and involved in the educational planning for their child.
100. It is clear from the
testimony that Respondent either was unwilling or unable to articulate a truly
individualized educational plan for this child. As noted above, Respondent was
unable to draft measurable goals and objectives, because, as noted by their own
expert, they didn’t know the materials, curriculum, and methodology which they
would use until the October 13, 2003, IEP meeting.
Page 45:
101. It is correct that
Respondent does not have to put the name of the teacher in the IEP. However, the
law is also clear that Respondent does have the onus of providing a teacher, who
is qualified and possess the skills necessary to provide the services required
by the child’s disabilities. The parents were rightfully concerned at the August
22, 2003, IEP, when Respondent presented a teacher who had only the most minimal
teaching and reading methodology experience.
102. Where Respondent
refuses to identify a teacher, it cannot use the fact that no teacher is
identified as an excuse to develop a vague, generic IEP.
Page 46:
Since a
reading of the IEP provides neither the parents, or anyone else for that matter,
any information other than some vague, incorrectly drafted goals and placement
in a generic educational classification, the parents requested permission to
have the program observed by their independent evaluator. This request was also
refused by Respondent.
104. This refusal was
another serious violation of D.B.‘s procedural safeguards. Respondent should
have allowed D.B.‘s parents to evaluate the proposed program through the
evaluation and observation of a private educational evaluator.
Page 48:
As
seen from the chart reproduced from Findings of Fact above, in the six years
that P.S. has had an ISP in Respondent’s schools, the gap between her reading
level (grade) and her actual grade has been increasing.
Year:
1997 2000 2003
Reading Level:
.5
1.8 4.2
2.5 years 3.2 4
(these gap figures do not
consider retention in the third grade)
D.B.‘s
difficulties in advancing in her reading cannot be blamed upon her cognitive
abilities.
Page 49:
It would
be reasonable to expect to find some increase in services, some efforts to use
new programs or curriculum. Respondent may have the prerogative to chose its
methodology, but it also has the responsibility to seek out and identify a
methodology which it can defend as reasonably calculated to confer meaningful
educational benefit.
109. Of concern is Respondent’s lack of
attention to D.B.‘s educational progress. Respondent has not tracked D.B.’s
progress nor determined what methodologies worked with her and what did not.
There was no way to measure progress against measurable objectives, and the ESE
department took no responsibility to assure the ability or skill of the
after-school tutor provided outside of the prior IEP.
Page 52:
115. Furthermore, it cannot be
argued that this was simply an error on the part of a team member who may not
have been skillful in drafting objectives. These goals and objectives were, in
fact, challenged by the parents’ advocate, and they were expressly defended by
the staffing specialist who refused to improve them. A note relative to the
August 22, 2003, meeting clearly spells out that the parents were asking for
goals and objectives, which would provide that D.B. would progress to a grade level in that
year. This request was not honored, as no such goal was placed on the IEP. Why,
if the team was attempting to draft an IEP, which was to be reasonably
calculated to confer meaningful benefits, would the team refuse to write goals
that are measurable. The answer might be that suggested by Respondent’s expert,
Dr. Oakland, that it was impossible to write more measurable objectives if the
team did not know the program, curriculum, or methodology that would be used.
116. It is concluded that
the IEP has been written to be so vague as to leave anyone reviewing the IEP
uncertain as to what actual educational services D.B. would receive. Placement
in a varying exceptionality class, while acceptable, only tells you that the
child will be receiving reading and writing instruction in a class with other
disabled children. The parents were given no information, either verbally, in
conference notes, or in the IEP, as to the size of the class; the academic
reading level of the class; the program, curriculum or methodology to be used;
or even the qualifications of the teacher needed to help D.B. with her severe
disability. The parents were given no objective way to measure their child’s
progress. The lack of specific information provided to the parents,
particularly in the light of D.B.‘s long history of reading difficulties and her
present fourth-grade deficit in reading, makes this IEP insufficient. If it is
impossible to calculate the likelihood of educational (reading) benefit to D.B.,
then the IEP is not reasonably calculated to confer such benefits.
117. Respondent has insisted that
they have no obligation to discuss programs, curriculum, and methodology with
the parents. To say that the teacher will determine the program and curriculum
on her own, without even informing the parents, is to effectively deny the
parents true participation in the educational planning. To deny the parents even
the right to have their expert evaluator view and assess the program, denied D.B.
of a FAPE. Therefore, the evidence is clear that the October 13, 2003, IEP does
not offer a FAPE to D.B.
3. Sherwin
Holmes, ESE Director, Declares Success in Email:
4. District Staff Claiming Success after Judge's Brutal Rebuke of District
IEP Procedures:
From my reading of the Final Order,
there was no success. No victory.
A student with a serious reading disability had
fallen 4 years behind her peers unnecessarily.
The Polk County School
System was unwilling to correct the problems, even when they were clearly
identified by the student's parents.
The parents tried to work
through the system, but it was costly and unproductive.
Even after a
brutal Final Order, it appears the District staff still is unwilling to
recognize that problems exist. Are there emails from the ESE Director to his
staff to initiate an education program for the ESE administrative staff on the
needs of students with dyslexia and how to develop successful education programs
for them? Will all future IEP's in Polk County conform to the judge's
order?
5. IEP Procedure
Breakdown Not Unusual:
From personal experience as an
advocate and a parent in ESE meetings, the faults in this particular student’s
IEP process are common and by no means unique. If the parents of ESE
students gain access to this Final Order, it can change how Polk County conducts
their IEP meetings. It strengthens the parents’ ability to know exactly what
type of education is planned for their student and what the qualifications will
be of the instructional personnel. Read this Final Order.
The attorney for the ESE student in this
case filed a Motion to
Reconsider (the tuition reimbursement) and filed another motion to explain why the
Final Order should be reconsidered.
