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Lack of a teacher who can quickly translate braille for a visually impaired student results in material failure of IEP implementation by school district

October 18, 2021

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By: Lily Crespo Esq.

Quick Takeaway: Districts should create contingency plans concerning how they will replace a teacher of the visually impaired when that teacher retires.

What happened: The mother of a 16-year-old blind student established that a district materially failed to implement the student’s IEP by not hiring a teacher credentialled to provide direct academic instruction to students with visual impairments. The U.S. District Court, Central District of California, reversing in part an ALJ’s decision at 120 LRP 30201, ordered the district to provide the teen 239 hours of compensatory education. The court affirmed the ALJ’s finding that the district conducted appropriate assessments of the student.

Background of the case: A California district’s failure to replace a retired teacher for the visually impaired with a similarly credentialed educator required it to provide 239 hours of compensatory education to a blind high school student.

Holding that the district materially failed to implement the 16-year-old’s IEP when it replaced her teacher with an itinerant teacher who was merely licensed to provide support to teachers of students with visual impairments, the court partially reversed an ALJ’s decision at 120 LRP 30201.

The parent alleged the district failed to provide the student with 165 minutes per day of specialized academic instruction by a teacher of the visually impaired, as required by the IEP, from August 2019 to February 2020.

The court stated that a district violates the IDEA if it materially fails to implement an IEP. Citing testimony from the district’s special education program administrator, the court agreed with the parent’s assertion that the new teacher provided support services to the student’s teachers, not direct academic instruction to the student. The court also cited the parent’s testimony that the teacher merely provided support, based in part on the parent’s classroom observation. Further, the itinerant teacher’s service logs, the court observed, bolstered the parent’s position. But even if the logs could be interpreted to encompass academic instruction, the court remarked, there was reason to doubt their reliability. “[The special education program administrator’s] testimony suggested … the logs were not submitted to the District contemporaneously on a biweekly basis for administrative reasons … but rather, were created at the District’s request for the purpose of defending Student’s lawsuit,” U.S. District Judge Michael F. Fitzgerald wrote. Noting that the student often received minimal or no academic instruction during the period in question, the court found that the implementation failure was material.

What this means for educators: The failure to promptly replace the teacher with someone who has the same credential may expose the district to multiple IEP implementation failure claims. Here, the district struggled to find a similarly credentialled teacher to replace the retiree and ended up using a teacher credentialled to provide support to academic instructors. Because the student’s IEP required a teacher licensed to provide direct instruction to students with visual impairments, the failure to find a suitable replacement denied the teen FAPE.

What is the name of the case and where can you read it? The name of the case is S.S. v. Bellflower Unified Sch. Dist., 121 LRP 32295 (C.D. Cal. 2021).). Read one of our previous posts involving Bellflower Unified School District in CA here.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.

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