The presence of a disability does not make a child eligible for an IEP.
The disability must adversely affect educational performance per the legal definition of a child with a disability in IDEA 2004 at 20 USC 1401(3). (See Wrightslaw: Special Education Law, 2nd Edition at page 49 and footnote 16 on page 50.)
A child with a disability which does not adversely affect educational performance is usually eligible for the protections of Section 504 of the Rehabilitation Act.
On November 17, 2015 in Q.W. v. Bd of Ed of Fayette County, Kentucky the Sixth Circuit Court of Appeals upheld a District Court decision which concluded that a child with autism lost his eligibility for an IEP because the autism no longer adversely affected his educational performance.
To completely understand a ruling by a Court of Appeals and its complete background, it is often necessary to look at the prior U.S. District Court ruling that is the subject of the appeal.
U.S. District Court Decision
On January 14, 2015, the U.S. District Court for the Eastern District of KY held that Q.W., a child with autism, lost his eligibily for an IEP because his autism was no longer affecting his educational performance. The child had an IEP in California and continued with an IEP upon moving to Kentucky.
Two years later the school district found that the child was no longer eligible for an IEP.
The parents asked for a special education due process hearing, lost, took it up to review and lost again. The federal court upheld the administrative hearings below noting that "under the IDEA, 'educational performance' does not include the student's performance outside the school setting. . . Notwithstanding the plaintiffs' concerns about their son's socialization skills, [Fayette] found Q.W. ineligible because of his successful academic performance."
In the decision the District Court noted that:
"At home, according to his mother, Q.W. needs a substantial amount of prompting to complete homework and daily tasks and struggles to maintain focus. Q.W. does well academically, but his parents worry that he has difficulty socializing with his peers. As a result of social anxiety, Q.W. often chews on his fingers and toes to the point of bleeding."
. . .
"However, the plaintiffs' private therapists interacted with the child only outside of the school setting. For example, the child's occupational therapist, never saw him in the classroom. Q.W.'s private speech therapist, had never met Q.W.'s teacher or observed him in the classroom. In fact, the plaintiffs elicited testimony from a therapist, who had never met Q.W."
"At school, Q.W. has not shown significant trouble. Q.W.'s second-grade teacher testified that Q.W. was academically gifted, 'off the charts,' and 'very high performing student.' Additionally, Q.W. behaved 'just like any other normal student' in the classroom. [The second grade teacher] indicated that the student's behavior at recess was typical and that he did not exhibit stress at school. The record suggests that any nail-biting at school is uncommon and does not impact Q.W.'s education."
In closing, the District Court explained that:
"The Board has adduced that Q.W. experienced no educational problems in the school setting, and the plaintiffs have not presented sufficient evidence to the contrary. The preponderance of the evidence — the standard articulated in § 1415(i)(2)(B) of the IDEA — favors the Board. While 'educational performance' may be understood to extend beyond the four corners of a report card to include a student's classroom experience, it does not include the child's behavior at home. Social and behavioral deficits will be considered only insofar as they interfere with a student's education. Here, they do not."
"Q.W. is not eligible for special education because his educational performance is not significantly below that of his same age peers. In fact, the child has excelled academically, and the record reflects Q.W.'s mastery of the curriculum being taught. He is able to attend school regularly and keep up (behaviorally and cognitively) with classroom activities. Although the record indicates that Q.W. continues to exhibit characteristics on the autism spectrum, his intellectual and achievement scores, teacher reports, and scholastic performance suggest that he is successfully acquiring academic and adaptive skills."
END of quotes from District Court
The U.S. District Court decision can be found on google scholar at:
Sixth Circuit Court of Appeals Decision
In the later appellate decision upholding the District Court, the Sixth Circuit explained that:
"The Parents' preferred reading has no limiting principle. Their position would require schools to address all behavior flowing from a child's disability, no matter how removed from the school day. We accordingly agree with the district court's judgment curtailing its review of Q.W.'s educational performance to the classroom and school experience—to the exclusion of social or behavioral deficits that were not shown to interfere with his school-based performance."
. . .
"Giving fresh review to the term, we agree with the district court, the Board, and the Parents that 'educational performance' may encompass more than academic achievement. By demanding that, absent a state-provided definition of the term, administrators 'use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information' to determine eligibility, the Act contemplates a holistic evaluation. 20 U.S.C. § 1414(b)(2)(A). The Act stresses this point by eschewing 'any single measure or assessment as the sole criterion for determining whether a child is a child with a disability . . . .' Id. § 1414(b)(2)(B)."
"Yet the Act and the corresponding Kentucky statute speak not at all about a child's behavior at home and in the community. Absent a contrary directive, a statutory term must be given its ordinary meaning. As the district court correctly observed, the plain meaning of 'educational performance' suggests school-based evaluation. This interpretation finds support in the Act's legislative purpose: to provide 'a free appropriate public education.' 20 U.S.C. § 1400(d)(1)(A)."
END of quotes from Court of Appeals
The Sixth Circuit decision can be found on google scholar at:
Pete Wright's Analysis
The key evidence that obviously impacted the outcome of this case was that the public school staff, who observed and knew the child, testified that his autism did not adversely affect his educational performance at school.
The witnesses who testified on behalf of the child were unable to testify to their observations of the child at school, explaining how his autism continued to have an adverse impact on his educational performance, because they did not observe the child in the school setting.
Negative social and emotional behaviors that occur outside of school, but not within the school setting, are not persuasive that a child has a disability which adversely affects educational performance justifying an IEP.
Wrightslaw: Special Education Legal Developments and Cases 2015. See page 47 and page 83.
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