Student Attends High School in the LRE After DRM Files for Due Process
The parent of a high school-age student with a mental illness contacted DRM about concerns that the student was not placed in the least restrictive environment (LRE) on return from a lengthy stay in a residential setting. The student lived in a part of the state where his local community did not operate a high school and did not have any agreement with any particular high school requiring its students to be accepted. Instead, the students had school choice, where tuition was paid to any number of high schools in the region. No school would accept the student due to their concerns about his past behaviors and he was without a school. Eventually, his home district placed him in a segregated private day treatment setting because that was the only available option, despite the fact that the student was not exhibiting any need for such a restrictive placement. Efforts seeking another placement were fruitless because no school would accept him. DRM filed a due process hearing against the resident district, where an agreement was made to withdraw the hearing without prejudice to allow the student's chosen evaluator to conduct an evaluation, at school district expense, to be used as a basis for securing admission to the student's chosen high school. But even after a very favorable evaluation, indicating that the student was little to no risk to himself or others, schools in the region would not make a placement available. DRM filed another due process hearing against both the local district and the Maine Department of Education due to the fact that both entities had failed to ensure a continuum of placements was available for the student. A negotiated settlement agreement resulted in the student attending his chosen high school with transportation, and in a mainstream setting with appropriate supports.
Note: Following this case, and other similar cases raised by both DRM and attorneys at Pine Tree Legal Assistance, the Maine Department of Education proposed a legislative fix to address the problem of students, especially students with disabilities, securing enrollment in schools where their community does not operate a school or contract for enrollment of its students in any specific school. The proposed legislation would give the MDOE the authority to designate a school of enrollment for a student in this situation. While MDOE has the ultimate legal responsibility to ensure students with disabilities have available to them a continuum of alternative educational placements and access to the least restrictive environment, MDOE does not currently have a clear statutory path to fulfill this responsibility. LD 1576 was proposed to remedy that. You can follow the progress of LD 1576 here: http://legislature.maine.gov/.
DRM Files an Expedited Due Process Hearing After Student Removed From School
DRM was contacted by the parent of a Kindergarten student who had been suspended from school pending a risk assessment and then not allowed to return while special education evaluations were underway. The student’s mother had requested a special education evaluation due to periods of agitation, aggression, impulsivity and hyperactivity resulting from several mental health diagnoses. While this evaluation was underway, the student was hospitalized. While the student was in the hospital, the school suspended the student pending a risk assessment due to concerns about his behaviors. After the risk assessment was completed, the school district convened an IEP Team meeting and informed the parent that the student would be offered two hours of off-site tutoring services during the evaluation period, which could last up to 45 school days. The parent objected to this change and sought other options, such as a return to the kindergarten classroom with additional supports. But no other options were given. Although the IDEA requires that advance written notice be given prior to changing an educational placement, the student’s removal from school to tutoring was effective immediately. And although the IDEA requires that a manifestation determination be held before removing a student to an interim alternative educational setting, no manifestation determination was held. DRM sought review of the removal of the student to an interim alternative education setting in an expedited due process hearing.
There was no dispute that the student was entitled to the protections of the IDEA, such as a manifestation determination, prior to being subjected to a change in placement. DRM argued that from the moment the student was removed from his kindergarten classroom, first through a suspension and later through placement on tutorial services, he was subjected to a change in educational placement based on violations of the student code of conduct. But the district argued that the removal was not a “disciplinary” removal, and that the placement on tutorial services was a valid placement based on the student’s needs. And despite the fact that the hearing officer found that the student had not been returned to his school classroom at any time following his initial suspension through the date of the hearing, (a period in excess of 45 school days), and despite the fact that no manifestation determination had been held, the hearing officer focused on the period of suspension and the period of time before tutorial services were available to the student, and found that his change in placement did not exceed 10 school days so no manifestation determination was required. DRM is currently seeking review and reversal of this decision in the federal district court. Stay tuned for updates!
Note: The use of “tutorial services” as a way to provide education to students exhibiting challenging behavior is widespread across the state. Students are often placed on tutorial services because the school does not have the resources or the will to appropriately address their needs. Often parents are provided little to no choice in the matter. And tutorial placements that are presented as temporary can drag on for months. This is inappropriate. Stopping this practice is a high priority for DRM and we encourage parents, guardians, surrogate parents, case managers and others working with children who have been placed on tutorial services to contact our office to discuss whether their child’s right to be free from unilateral removals as a result of behaviors and right to an education in the least restrictive environment has been violated.
DRM Assists Young Man with Autism with Self-Advocacy
DRM provided information and technical assistance to an 18-year-old young man with Autism and his mother/legal guardian regarding discharge planning from an out of state residential treatment program. During a monitoring visit to an out of state residential treatment program, the advocate provided information the client about his rights, as the client had requested assistance to advocate for appropriate discharge planning to a Maine program closer to his family. The advocate also provided his mother and legal guardian with information regarding the client's rights and services that he may be eligible to receive in Maine. The mother was able to successfully obtain a case manager and secure services for her son. He has successfully transitioned to his own apartment with support in Maine.
DRM Successfully Ensures Delivery of Intensive Early Intervention Services
DRM was contacted by the parent of a 3-year-old child with autism after receiving an inappropriate denial of service letter. The client was receiving services under Section 65 Behavioral Health Day Treatment, which allows for intensive services in a school setting. The service is designed to provide early intensive intervention for children with autism, which is universally recognized as best practice including by the Maine Department of Health and Human Service state of the evidence report from 2009. The service utilizes Applied Behavior Analysis practices. In the course of the representation, two more parents of children in the same program contacted DRM to represent them in their denial of service. DRM successfully represented the client at hearing, restoring all services. The two subsequent cases were approved without an administrative hearing.