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Failure to Provide a
FAPE, Unilateral Graduation & Compensatory Education:
On March 19, 2002, U. S. District Court judge Manning issued a strong decision about FAPE in Kevin T. v. Elmhurst Comm. School District No. 205. [link to decision at end of this article]
involves Kevin T, a 19 year old with a severe learning disability, ADHD,
and bipolar disorder. The school district provided Kevin with special
education services since he was six years old. The district placed in
a private special education day school for several years.
Between 1990 and 1999, Kevin's IQ dropped from 101 to 83. His scores on academic achievement tests decreased significantly between 1993 and 1999. After twelve years of special education, Kevin's reading, math and writing skills were at the 3rd to 5th grade levels. In one year at Acacia Academy, Kevin made about three years of progress in reading, math and writing
In Kevin T. v. Elmhurst Community School Dist. No. 205, the Court addressed witness credibility, failure to review and revise IEP goals and objectives, regression of skills, assistive technology, state achievement tests, transition plans, unilateral graduation, and compensatory education as a remedy for the district's failure to provide a FAPE.
J. testified that the decrease in Kevin's IQ scores was not the result
of a lack of intellectual achievement under the IEPs. Rather, there
could be a "variety of reasons" and she did not "think
anyone would be able to say precisely why that would have occurred."
drop in Kevin's IQ scores, according to Ms. J, can be explained by the
'statistical structure' of the tests and Kevin's own mental state on
"However, she also testified that Kevin's reading difficulties were not the result of a cognitive disability but rather resulted from Kevin's ADHD. When asked what goals and objectives were crafted to address her concerns about ADHD interfering with Kevin's reading, Ms. J, after reviewing the IEPs, testified that reading was not identified as an area of concern."
"Despite her testimony laying the blame for Kevin's reading problems on his ADHD, Ms. J. testified that by 1999, Kevin no longer had ADHD."
"Moreover, Ms. J. stated that based on Kevin's grades, he was making sufficient academic progress. However, despite the above testimony, Ms. J, after reviewing Kevin's 1998 test scores, agreed that there was a "severe discrepancy" between Kevin's grade level /age and his reading ability which was measured at the 4.6 grade level in 1998."
The Court concluded that the school psychologist's testimony was not credible:
J, who is a psychologist and not an expert in special education, gave
evasive and inconsistent answers regarding Kevin's intellectual ability
and the reasons for his decrease in IQ and academic test scores. Moreover,
her opinion that the decrease in Kevin's IQ scores can be explained
by the 'statistical structure' does not account for why or how his IQ
dropped by almost 20 points in nine years."
"Ms. D. testified that Kevin's reading scores were 'much lower' than his ability and that the text books used in some of Kevin's classes, for which he received Ds and Fs, were for students reading at the third/fourth grade level.
Did IEPs Provide FAPE?
asked these questions:
After reviewing Kevin's IEPS for three years, the judge found that "each IEP contains almost identical goals, objectives, and present levels of performance."
An independent expert evaluated Kevin and attended two IEP meetings where she shared concerns and presented draft goals and objectives. The Cour found that the IEP team ignored her findings and recommendations and made no changes to the goals and objectives in Kevin's IEP.
Other witnesses, including a special education teacher for the district, testified that the district failed to review and revise Kevin's IEP. The special education teacher for the district ". . . testified that, despite being aware of Kevin's poor reading scores, the district did not make any changes to Kevin's goals and objectives . . . to address his reading difficulties."
Regression of Skills
The Court found that Kevin had average intellectual potential, but that his IQ and academic achievement scores "dramatically decreased from 1990 to 1999." Despite knowledge of this decrease, the district did not review or revise his IEPs to address his increasing academic problems. The Court determined that the IEPs were not "reasonably calculated to confer [an] educational benefit upon Kevin" and that "the District failed to provide Kevin with a FAPE . . ."
In developing a student's IEP, the district is required to " . . . consider whether the child requires assistive technology devices and services." 20 U.S.C. Sec 1414(d). (p. Wrightslaw
witnesses testified that Kevin should have been assessed for and given
AT. Despite this requirement to consider AT, "the District did
not 'consider' let alone provide Kevin with AT." Kevin's case manager
"was not even familiar with what constituted AT.'
Statewide Assessment Tests
"IEPs must include a statement of any modifications which are required for the child to take state wide assessment tests. 34 C.F.R. Sec 300.347(a)(5). If the child does not participate, "the IEP must include a statement of why the assessment is not appropriate and how the child will be assessed."
IEPs state that testing is "not appropriate" or "are
silent on the issue of state assessment tests."
Transition Services & Plans
The Court found that the district implemented the first transition plan for Kevin when he was 17 years old. The Court found that the transition plans drafted were not appropriate.
The IDEA regulations require school districts to provide a FAPE to children disabilities until age 21 or until the student graduates from high school with a regular high school diploma. 34 C.F.R. Sec 300.121-122.
Although Kevin's skills were deficient, the district decided to graduate Kevin with a regular high school diploma. Why? After graduation, the district would be off the hook - they would not be obligated to provide him with a FAPE.
The Court found "that the district did not assess whether Kevin made any progress or completed his IEP goals and objectives, and thus, inappropriately graduated Kevin."
"Automatic grade promotion does not necessarily mean that the disabled child received a FAPE or is required to be graduated."
"Additionally, because the District inappropriately graduated Kevin, this Court orders that the District reimburse Kevin's parents for the reasonable expenses incurred at Acacia after the District stopped its funding of Kevin's education . . . "
"Compensatory education is 'a legal term used to describe future educational services' which courts award to a disabled student under the IDEA 'for the school district's failure to provide a FAPE in the past."
". . . the District did not provide Kevin with a FAPE. Therefore, to cure this violation, the Court orders the District to continue to pay for Kevin's education at Acacia until he reaches the age of 22."
decision in Kevin
T. v. Elmhurst Community School Dist. No. 205 (in pdf)
Kevin T. and his family are represented by Michael A. O'Connor, an Illinois attorney who represents children with special needs. Like Pete, he is on the Executive Board of the Council of Parent Attorneys and Advocates.
The Council of Parent Attorneys and Advocates (COPAA) is an independent, nonprofit, tax-exempt organization of attorneys, advocates and parents, whose primary mission is to secure educational services for children with disabilities. COPAA is premised on the belief that the key to effective educational programs for children with disabilities is collaboration as equals by parents and educators. This is the premise of the Individuals with Disabilities Education Act (IDEA) and Section 504 of the 1973 Rehabilitation Act, the federal statutes that guarantee children with disabilities a free appropriate public education. COPAA is not an organization that provides individual advocacy or legal representation to children with special needs.