Interesting article about ADHD and IEPs

[VaMom]

This was posted on the AOL boards. I thought it was very interesting.


District decides to head to court


MICHAEL BARBER

Herald Staff Writer


MANATEE - Concerned a legal ruling against the school district could lead thousands of additional students to apply for costly special education services, the Manatee County School Board voted Wednesday to take the issue to court.



Following the advice of school board attorney Mark Barnebey, the board voted 5-0 to appeal the earlier judgment rendered by Administrative Law Judge Daniel Manry.



At issue is whether or not a fourth-grade student with Attention Deficit Hyperactivity Disorder (ADHD) needs a specially designed individual education plan to enhance his ability to learn. School district officials say the child, whose name was withheld in court documents, doesn't need extra help.



"When our attorney advises us to do something, that has a lot of weight with us," said school board member Harry Kinnan. "He felt like this was something we needed to go ahead and appeal and go forth with. That's why you have attorneys."



The dispute could ultimately cost the district millions in additional special education costs and set a precedent for other school districts.



School district officials cite the student's above-average IQ, his high achievement on standardized tests and the fact that he routinely receives A's and B's in academic courses as proof that he's making good progress in school.



The child's mother, Joanie Derry, says that's not enough.



Case debated



Derry claims her son's education is being hampered because he is constantly being punished for behavior normally associated with ADHD, which is a "neurologically-based disorder commonly associated with hyperactivity and impairments in attention," according to a legal definition.



Derry claims the stress placed on her son because of the frequent disciplinary actions has inhibited her son's ability to achieve to his maximum ability.



In his administrative hearing ruling, Manry agreed with Derry after hearing both sides of the case in March. Manry's decision was released earlier this month.



"The preponderance of evidence shows that Petitioner is a child with a disability and eligible for an IEP (individual education plan)," Manry wrote in his ruling.



The School Board has enlisted the services of Gregory Scharff, an attorney with Edward and Scharff in Palo Alto, Calif., to assist in the case. Scharff was out of town and unable to return calls by the Herald Wednesday.

The district has until July 2 to file its appeal.



"Our professional belief is that the administrative law judge has erred in his opinion," said Superintendent Roger Dearing. "There are set standards on how to qualify for exceptional student education services, and we have performed all those tests, observations, surveys and interviews, and the child does not qualify under the federal guidelines."



Dearing and other district officials fear a ruling in favor of the child could open the floodgates to similar students applying for individual education plans. The cost of an individual education plan can range from a low of about $2,000 to as much as $15,000 or $16,000 depending on the range of services required, according to Fran Padgett, the district's executive director of education programs.



The school district has about 8,000 exceptional education students on individual education plans, Padgett said.



If Manry's ruling is upheld, Dearing said as many as 2,000 additional students in Manatee County could apply for individual education plans, a scenario that could cost the district millions of extra dollars.



"The state is terribly underfunding exceptional student education now," Dearing said. "What if we were suddenly impacted by another 2,000 kids needing individual education plans."



Who qualifies for help?



Some students easily qualify for individual education plans under federal guidelines because they suffer from severe disabilities such as mental retardation, physical handicaps, visual or hearing impairments, Dearing said.



Other students, such as those who suffer from ADHD, must undergo a battery of tests applied by the district to determine if they qualify for special assistance. Dearing said the district performed the battery of tests on the student in question and determined he did not need additional assistance.



Timothy Weber, Derry's St. Petersburg-based attorney, disagrees with Dearing's assessment.



"What the judge found was that the school district failed to follow the proper procedures to even make that determination," Weber said. "They never evaluated the child appropriately, they never attempted to collect appropriate data and information in order to make an accurate and legal determination."



In his administrative hearing ruling, Manry agreed with Weber and determined the school district didn't perform a thorough enough evaluation of the student's needs and instead relied too much on the child's "academic performance" to justify denying him an individual education plan.



"Educational performance is not limited to academic progress," Manry wrote. "It is inappropriate to use passing grades or achievement test scores as a litmus test for determining eligibility for an IEP."



Barnebey and school district attorney Rob Shapiro told board members Wednesday they think Manry's ruling is wrong, and that the student does not meet federal guidelines for exceptional student education under the Individuals With Disabilities Education Act (IDEA).



Behavior an issue



In his ruling, Manry wrote that while the child was getting passing marks in citizenship, he was routinely being punished for his behavior, which included "talking in class, talking in the library, talking in the lunchroom, fidgeting, tapping, wiggling in his seat, moving during learning, forgetting homework, running up to the drinking fountain, pushing, touching, annoying another student, breaking school rules and running in the hallway."



As punishment, the student was made to stand next to a wall or stay inside during recess. The practice of standing off to the side during recess was known as "time on the wall."



During third grade, according to Manry's ruling, the student "missed some or all of his recess to discipline for ADHD behavior on approximately 100 school days."



"This particular school district discriminated against this child for a year and a half in really egregious fashion," Weber said. "Because of his disability he was being punished on almost a daily basis. The judge finds in his order that on 100 out of 180 school days he was disciplined for his disability."



Dearing said the student's behavior and his academic performance are two different issues, and that not all ADHD students are in need of individual education plans. Even though the child was being punished, his good grades and high test scores indicate he was performing well academically.



"The judge said the student's ADHD adversely affected his educational performance during the third grade and the fourth grade," Dearing said. "We want to know how he determined that. How does he know what affected the child's performance? All we have is the psychological IQ test and his grades in school."



Ramifications of a ruling



If the courts ultimately decide in the student's favor, the decision could affect thousands of additional children across the state or nation. In addition, if a ruling goes against the school district, a judge could order the district to pay Derry's attorney's fees.



"The issue is whether the child's disability hinders the effect of education," Weber said. "And the issue is whether education performance is broader than passing from grade to grade or being able to do well on a test, it should include the entire educational experience."



Dearing said he's consulted with two experts on exceptional student education law and they both indicated the district has a good basis for having Manry's ruling reversed.



"I don't see myself in an adversarial role with the mother," Dearing said. "As a parent, I understand she wants what's best for her child. The easy thing for me to do would say yes, but I have people in our ESE department that say this decision is an error, and has the potential of opening the floodgates to other similar claims."

[chaknine]

Very Interesting!!!! I think this sort of action towards adhd happens all the time. Matter a fact we are dealing with the same treatment right now. As I am sure many of you are!!! We get the old "He can do it if he want to"!
shelli

[TerryB]

A child that does not respond to all the punishment that was given to him sounds like an child with a disability! Do they think that another year of hell for this child will suddenly start having an affect! I sure hope the mom is successful!

[Mayleng]

I hate this lets just blame the child and if we punish him often enough he will learn. Stupid, stupid, stupid

[Mayleng]

Vamom, I posted your post on the schwablearning.org site and the mom who is suing the Mannatee county responded.

For those interested here is the link:

www.schwablearning.org/message_boards/view_messages.asp?r=281&m_id=60767#T

[dansmommy]

Oh good grief. This is what I was so afraid of in school, but ds's school doesn't treat any of the students this way. I think there should be a way to sue the school district for malpractice. If the teachers had any training at all, they'd know better than to treat a child like this. They're so worried about opening a floodgate, so their methods must not be working with a lot of kids. Christie

[whootiewho]

This situation really interests me because although my son has only slight delays in reading, his behavior is also a major problem, in first grade his regular teacher was on maternity leave so they had a substitute for one whole semester, my son ended up being in the responsible thinking center 89 days while this sub was the teacher, not good odds when they go to school 180 days, and the reasons where also for talking in the restroom, talking in class, picking tape off his desk, wandering, ect. some times its just pathetic and I dont feel removal from the classroom is the key. Keep me posted!

[catatonic]

As my son's school pointed out...they have an obligation to provide an "appropriate" education, not an "optimal" one. They interpret this to mean they don't need to provide him any extra help until he's failing something. How's that for pro-active???

On the other hand, a child who presents constant disruptive behavior -- even if he can't help it -- is interfering with 20 other children's learning. Is this fair? Well, as the parents of the disruptive children, we may think so. I don't know that any of the other 20 children's parents would agree. And maybe they're right.

I am curious...if it's not acceptable to discipline a child for his inappropriate behavior, on the assumption that he can't help it and therefore isn't responsible for it...then what would you recommend a teacher do with a child who is a constant disruption in class? I'm not trying to be argumentative or anything, I'd truly like to hear what you guys think. I have a son who talks too much in class and I'd like to hear some suggestions about how to handle it so that maybe I can find some ideas to pass on to his teacher. Personally, I don't think my son should be allowed to disrupt the rest of the class, and I stand behind his teachers when they need to discipline him for it. On the other hand, I wouldn't consider depriving him of recess on a daily basis to be a reasonable or productive response, so I'm glad that hasn't become an issue for us.

I guess what I'm wondering also is...how much special treatment are our children entitled to in a public education setting where the needs of one have to be balanced against the needs of many? It's not an easy thing to figure out. I know that the schools have worked very well for my older children who do not have ADHD and are academically gifted. They are working noticeably less well for my Challenge Boy.

[Dakotah]

Wow Catatonic- I signed on today to discuss something similar. The boy on Dr. Phil who's mom didn't want to use meds but the school insists he does weighs on me. This boy was a bully, verbally inappropriate and impulsive (according to mom). Now I want to make it clear that I don't think the school has the right to decide which kids use meds and which do not. What is this child doing to the classroom environment? I honestly don't think it is fair to the rest of the class. But I don't have an answer as to what the proper action should be. Kids in my district who are "over the top" get an clerk to shadow them. This is rare however because it is expensive. I have to wonder what kind of life is this boy going to have? He is clearly not in control of himself and will have a hard time learning the skills to do so because his focus isn't there. Sometimes I would even go so far as to say it isn't fair to not use meds. My child is "over the top" and would be "that student". Meds. work for him and he is happy. I wonder if a child hears their parent go on and on about how they don't like meds. and the meds. do this and the meds. do that, if the kid picks up on that and rejects the idea of taking meds?

[Mayleng]

Cat, I agree with you that kids should be held accountable and be disciplined. According to my friend, the School Psych, instead of just punishing the ADHD kids by being punitive, the school should do a Functional Behavioral Evaluation. With that evaluation they come up with a behavioral plan that the teachers can use and the parents are aware of and agree to. Most schools don't do that. They would just blame the kid and expect the kid to behave. Since you have the challenge boy, you know that he cannot be held accountable 100% for that. There has to be a plan. Taking away recess (which I think All kids need ) is punitive and demoralizing. Kids (whether medicated or not) respond better to positive reinforcements, a structured environment, a disciplined teacher not a mean teacher. My child is not disruptive to the rest of the classroom, so I would be one of those parents whose kid's education is somewhat compromised when there is a disruptive child, but I don't blame that child. I think the schools have to train their teachers better on handling disabilities whether it be academic or behavorial which they don't right now.

[Dakotah]

I agree with you both. In my mind I am always going to the extreme case. That is what my son is. All behavior modification techs. didn't work for him. Nothing. Then what? We have the rest of the class to worry about disrupting. Compromising their education, not to mention my son's education. I am not sure what the solution is...

[catatonic]

Dakotah, that's a really big question you've brought up. Wowie. Certainly schools shouldn't have the right to force a parent to medicate their child. On the other hand, perhaps they should be able to remove a child from school if his behavior has a seriously negative impact on other children's learning. Or safety. Public schools aren't capable of teaching everyone, and in fact I often wonder how capable they are of teaching anyone who doesn't fit "the mold". I have a certain amount of sympathy for the schools and their incredibly difficult task. On the other hand, I don't think very highly overall of the way most schools respond to students who are a greater-than-average challenge to educate. There really isn't an easy answer. After all, it's a fundamental issue that our democratic society has been struggling with since its inception...the needs of the few versus the rights of the many. In his fascinating analysis of the newly formed America, early in the 1800's, Alexander de Toqueville predicted that the evenutal result of democracy would be to drag everyone down to the lowest common denominator. While this does occur to a degree, I think overall we've managed to escape that grim fate. And I think part of the reason we've escaped it is that we often devote more resources than are really fair to the exceptional case. We accomodate the unique, good and bad, and it keeps us from turning into cookie cutter people. Of course it also keeps us in conflict, in court, in disarray, in debt...