Advocare

Fall 2007

A Publication of the West Virginia Advocates, Inc.

WVA Programs

Protection and Advocacy for Developmental Disabilities

WVA Client Gets Back in School with Services After Due Process

West Virginia Advocates, Inc. (WVA) was retained by a parent to represent her son, first at an expulsion hearing, and then in a due process complaint regarding the special education and related services being provided by a Local Education Agency (LEA).

WVA's Client is a student with primary diagnoses of Asperger's syndrome and bipolar disorder. The client was suspended from school due to an allegation that he caused "serious bodily injury" to a teacher. The parent received prior written notice hand delivered to her home by a school employee informing her that the client would be placed in an interim alternative educational setting. At the manifestation determination/IEP meeting, the IEP Committee determined that the incident was a manifestation of the client's disability. However, the LEA indicated it still intended to proceed with the expulsion hearing.

The parent requested and WVA agreed to provided representation at the expulsion hearing, and then in a due process hearing. In the due process complaint, WVA alleged that the client's IEP had not been fully implemented, and the failure to do so had caused the altercation with his teacher; further, conditions were not met for the LEA to place the client in an interim alternative educational setting. The LEA had not complied with the procedural safeguards outlined in the Individuals with Disabilities Education Act (IDEA), as amended, prior to deciding an alternative interim educational placement, and the proposed alternative educational placement was not appropriate.

WVA requested that the LEA hire a teacher certified in Special Education-Autism to provide direct instruction to the client. We also requested an evaluator/educational consultant, trained by the Autism Training Center, to provide a Functional Behavior Assessment, and meet with the client's IEP team to develop positive behavior supports, including a Crisis Intervention Plan, and that this consultant also monitor the implementation of the behavior plan.

In the settlement reached, the client received all of the services identified above plus extended school year services and other social opportunities to be provided by the LEA. All attempts to expel or punish the client for the altercation were dropped. All language describing the incident as resulting in "serious bodily injury" will be removed from all of the school records. WVA was awarded attorney's fees from the LEA system for its representation of this client in this due process proceeding.

Regenia Mayne, Staff Attorney

WVA Client Prevails in Due Process Filed by LEA

WVA was contacted by a parent seeking legal representation for her child, after the Local Educational Agency (LEA) filed a due process complaint against the parent.

The client, a middle school student, has a diagnosis of autism, and had been out of school a significant period of time. The client was removed by the parents, who feared for the student's safety. He began receiving homebound services and subsequently returned to middle school for several months. The parents were concerned about his behaviors, and the IEP team decided that the student should receive homebound services.

For the next year, attempts to develop and implement an IEP and a plan to transition the client back into school were unsuccessful. The parent filed a state complaint against the LEA with the State Department of Education. Soon thereafter, the LEA filed a due process complaint against the parent alleging that the child's IEP, which the LEA had both developed and signed off on, was now "unworkable". In its due process complaint, the LEA responded to the issues the parent raised in her state complaint by asserting that the parents had been present at the IEP meetings and could have made any changes they desired in the IEP at those times.

WVA provided the student with legal representation at the Due Process hearing. In the decision, the Hearing Officer concluded that the LEA had denied the student a free and appropriate education (FAPE) and ordered that steps immediately be taken to begin to transition the student back into the school environment.

In the Hearing Officer's decision, the LEA was also ordered to do the following: to assign a contracted behavioral specialist with the primary responsibility for transitioning the student back to the school and other settings; to immediately contract with autism specialists to evaluate the student and, if it deems necessary, develop a program for the student, train school personnel for the student, and provide any and all other services to transition the student to the school setting; to give the LEA-contracted behavioral and autism specialists full authority to implement the student's transition plan and provide any and all support and personnel they deemed beneficial or necessary to transition the student to the classroom as expeditiously as possible; to provide any and all necessary training for the student's teachers and aides based upon the recommendations of the contracted behavioral and autism specialists; to provide any evaluations or special services or provide for the acquisition of the same from other than the LEA if the contracted behavioral and autism specialists are of the opinion, either jointly or separately, that the student needs any evaluations or special services; to provide the student with extensive and summer-long extended school year (ESY) services as compensatory education, and to provide these services in the morning hours and eight school weeks for at least four hours per day; and, to provide the student with a full-time one-on-one aide or autism mentor to assist the student in the home, in the school setting and for the extended school year (ESY).

The Hearing Officer also ordered that the student attend the county middle school for the 2007-08 school year, and that the LEA provide the student with sensory integration space and equipment, OT services, and any and all other services or requirements as set forth in his IEP, or recommended by the contracted behavioral or autism specialists. As the prevailing party in the Due Process hearing, WVA was able to recover reasonable attorney fees from the LEA.

Teresa Brown, Staff Attorney

Success Stories

A client with DD, who had always lived with an older sister, was placed in a nursing home after intervention by Adult Protective Services (APS). APS had identified supports needed by the client in the home which the family was unable to provide. WVA provided contact information to various Waiver providers so the client could apply for Waiver services. The application was completed and the client was found eligible for services. The advocate helped in identifying appropriate services and equipment on the Individual Program Plan. The services were secured and the client finally moved home.

Due to numerous requests for advocacy representation at Medicaid Fair Hearings to appeal ineligible/termination decisions for the MR/DD Waiver Program, WVA developed self-advocacy packets to assist clients, their families and/or case managers in the Hearings.