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Case law..failure to provide speech therapy
16 EHLR 299
Angleton (TX) Indep. Sch. Dist. (FAPE)
Office for Civil Rights, Region VI
October 5, 1989
• Free Appropriate Public Education (FAPE), Related Services
• Related Services, Other Therapies and Services
• Individualized Education Program (IEP), Implementation of IEP
Summary
The parents of a speech and language handicapped student alleged that
the district failed to provide the student with speech therapy, as
required by the student's individualized educational program (IEP).
During the student's pre-kindergarten year, the IEP indicated that the
student would receive five, 25-minute speech therapy sessions per week.
Throughout the year, the student missed 20 sessions due to the
therapist's engagement in other duties or the therapist's illness.
HELD: for the parents.
OCR found that the district's failure to provide speech therapy during
the 20 missed sessions constituted violations of Regs. 104.33(a) and
104.33(b)(1). The district's attempt to find substitute therapists,
without actually employing such substitutes, was not a mitigating
factor, in OCR's determination.
Dr. James H. Smith
Superintendent
Angleton Independent School District
1900 N. Downing Road
Angleton, TX 77515-3706
Complaint No. 06-89-1149
This is to advise you that the Office for Civil Rights (OCR) has
completed its investigation of the complaint filed by [ ], on behalf of
their daughter, [ ], and other speech and language handicapped students,
against the Angleton Independent School District (AISD) in Angleton,
Texas. [ ] alleged that AISD discriminated against their daughter, who
is speech and language handicapped, and other speech and language
handicapped students, on the basis of handicap, in violation of Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (amended 1974),
and its implementing regulation, at 34 C.F.R. § 104.33(a), (b)(1)
(1989). Specifically, [ ] alleged that the AIDS failed to provide their
daughter and other speech and language handicapped students at its
Special Learning Center with speech therapy services as required in
their individual educational programs.
The Office for Civil Rights has the responsibility to enforce Section
504 of the Rehabilitation Act of 1973, which states:
No otherwise qualified handicapped individual in the United States . .
.shall, solely by reason of his handicap, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance. 29
U.S.C. § 794.
Prior to the initiation of the investigation, OCR established that the
AISD receives or benefits from Federal financial assistance from the
Department of Education. Therefore, OCR has jurisdiction to investigate
this complaint.
We found that the AISD violated Section 504 of the Rehabilitation Act of
1973 with regard to the complaint allegation. OCR discussed its findings
and appropriate corrective action steps with you on September 18, 1989.
Prior to the issuance of the letter of findings, you submitted a
voluntary plan to correct the violation. For your reference, our
findings and conclusions are summarized below.
Issue
Whether the Angleton Independent School District (AISD) discriminated
against [ ] and other speech and language handicapped students at its
Special Learning Center, by not providing them with speech therapy
services that were identified as necessary for the child and children,
respectively, in violation of Section 504 of the Rehabilitation Act of
1973, 20 U.S.C. § 794 (amended 1974), and its implementing regulation,
at 34 C.F.R. § 104.33 (a), (b) (1) (1989).
Findings
The complainants' daughter [ ], is a five-year-old speech and language
handicapped student in the AISD. She was enrolled for half days
(mornings) in the pre-Kindergarten program at the AISD's Special
Learning Center during the 1988-89 school year.
The AISD's Department of Special Education determined that [ ] met the
eligibility criteria as a speech and language handicapped student based
on the Texas Education Agency guidelines. The complainants' daughter is
a handicapped person by virtue of her speech/language deficiency which
substantially limits a major life activity. She is a qualified
handicapped person because she is of the age during which nonhandicapped
persons are provided early childhood education.
An Admission, Review, and Dismissal (ARD) committee meeting was held on
September 23, 1988, for the initial educational placement of [ ]. The
committee members included, [ ]'s parents, the Special Learning Center
Director, [ ]'s teacher, assessment personnel, and the speech therapist
for the Special Learning Center. During this initial meeting, an
Individual Educational Plan (IEP) was developed for [ ]. This IEP called
for three 25-minute speech therapy sessions a week, to be effective
September 28, 1988 through May 31, 1989. The specific days that therapy
was to be provided were not included in the IEP. The scheduling of
sessions was left up to the speech therapist. Information provided and
interviews conducted indicate that [ ] was scheduled to receive speech
therapy on Monday, Tuesday and Wednesday mornings.
At the request of [ ]'s parents, a second ARD meeting was held on March
2, 1989. [ ] were concerned about [ ]'s lack of speech progress. During
this meeting, AISD agreed to provide [ ] with a comprehensive individual
assessment prior to the annual ARD review. A third ARD meeting was held
on March 15, 1989, again at the parents' request. The committee members
included [ ] the Special Learning Center Director, Special Education
Teacher, speech therapist and educational diagnosticians. During this
meeting [ ]'s speech therapy services were increased to five 25-minute
sessions a week, to be effective March 16, 1989 through June 1989.
According to information provided by the district there were 25 days
during the 1988-89 school year in which, [ ] was scheduled for speech
therapy, but did not receive this service. One of the missed therapy
sessions (May 4, 1989) is accounted for by being in "time out." On four
other occasions (March 1, April 12, April 21 and April 26, 1989) [ ] was
absent. In five instances, speech therapy was not provided because the
therapist was occupied with administrative responsibilities such as ARD
meetings, updating IEPs, and class schedulings. The remaining 15
sessions were not conducted because the therapist was ill.
It was determined that although, [ ] was to receive speech therapy three
times a week during the first part of the 1988-89 school year, it was
actually provided on only sixteen days during October, November, and
December, 1988. Beginning on March 16, 1989, her IEP called for speech
therapy five days a week. The complainants believed that since April 18,
1989, [ ] was served only on May 3, 8, and 9. The therapist reported
that [ ] received therapy on more than these three occasions. However,
these were the only three days that she sent progress notes home with [
]. She speculated that the complainants had assumed that therapy was not
provided on days when notes were not sent.
According to AISD officials, efforts were made to provide speech therapy
during the periods the therapist at the Special Learning Center was
absent. The therapist was absent due to illness for most of the time
between October 24 through December 7, 1988. AISD officials indicated
that two district speech therapists met with [ ]'s therapist during her
illness on a number of occasions to discuss her cases. They made
arrangements to serve the students determined to be in most need.
The AISD contacted outside sources for possible speech services. The
Brazoria County Association for children with Handicaps, an organization
that provides speech and other services, was contacted. In addition,
several area school districts were called. However, no speech therapists
were available through these outside sources.
Information provided by AISD indicates that there were approximately 75
students at the Special Learning Center who required speech therapy
during 1988-89, not all of whom were being served at the Special
Learning Center. The speech therapist at the Special Learning Center was
responsible for providing speech therapy to approximately 49 students;
the remaining students received services elsewhere in the District.
According to these students' IEPs, speech therapy was prescribed ranging
from 30 to 90 minutes a week, usually in 30-minute sessions. AISD was
unable to provide documentation to show the dates and times when speech
therapy was provided. However, documentation showing students assigned
to the speech therapist who was ill from October 24 through December 7,
1988, indicated that at least 49 students did not receive the prescribed
amount of therapy. This was confirmed by the therapist.
In addition, AISD officials stated that speech therapy was not always
provided to students as scheduled because the speech therapists were
involved in other duties. The Special Learning Center Director stated
that speech therapists cancelled speech therapy sessions with students
because of duties such as ARD meetings, testing of students, staff
meetings, IEF development, vision and hearing screenings, and classroom
observations.
Conclusion
OCR's investigation revealed that AISD failed to provide prescribed
speech therapy to speech and language handicapped students at its
Special Learning Center. At least 49 speech and language handicapped
students at the Special Learning Center who required speech therapy were
not provided with such services as prescribed through the evaluation
process for the 1988-89 school year. Information on the complainants'
daughter indicated that there were 20 days in which the child was
scheduled to receive speech therapy, but did not receive this service
because her therapist was ill or engaged in other activities. While AISD
made some efforts to find substitute speech therapists for the Special
Learning Center during the therapist's illness, it was unable to employ
such substitutes. On five occasions when [ ]'s therapist was present to
provide speech therapy as scheduled, her time was used instead for
administrative and ARD activities. Therefore, OCR found that the AISD
had violated Section 504 of the Rehabilitation Act of 1973, and its
implementing regulation, at 34 C.F.R. § 104.33 (a), (b)(1) (1989) with
regard to this issue.
A member of my staff discussed these preliminary findings with you on
September 18, 1989. In response, in letters dated August 3, September
20, and September 27, 1989, you submitted assurances that the AISD will
provide speech therapy services to all speech and language students as
specified in their Individual Educational Plan, and that records would
be maintained documenting the provision of these services. In addition,
you outlined AISD's revised procedure for providing speech therapy
services effective with the 1989-90 school year. Speech therapists have
been advised in writing that they should not cancel scheduled speech
therapy sessions because of administrative duties such as scheduling,
paper work, and ARD meetings. The AISD has also committed to use
substitutes or other speech therapists when a therapist is absent from
duty. You also provided the names of individuals that you plan to use as
substitute speech therapists.
Based on your written assurance that speech and language therapy will be
provided, we consider AISD to be in compliance with Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794 (amended 1974), and its
implementing regulation, at 34 C.F.R. § 104.33(a), (b)(1) (1989).
Consistent with our standard practices, compliance with your commitment
will be monitored. Accordingly, we request that you provide OCR with
interim and final reports for the 1989-90 school year regarding the
provision of speech therapy services by the Special Learning Center. The
interim report, to be submitted by February 1, 1990 should cover
services provided during the first half of the school year. The final
report, to be submitted July 1, 1990, should cover services provided
during the second half of the school year. The reports should include:
1) The prescribed amount of speech therapy, as specified in students'
IEPs, for each student; and 2) The date, time, and the name of the
provider of speech therapy, for each student. If a discrepancy exists
between the amount of speech therapy that was prescribed and the amount
that was provided, an explanation for the discrepancy should be
included.
This letter of findings is not intended nor should it be construed to
cover any other issues regarding compliance with Section 504 of the
Rehabilitation Act of 1973 that may exist and are not discussed herein.
This case is closed as of the date of this letter. In accordance with
OCR's case processing procedures, we have notified the complainants of
this action.
Under the Freedom of Information Act it may be necessary to release this
document and related correspondence and records upon request. In the
event that OCR receives such a request, we will seek to protect, to the
extent provided by law, personal information which if released would
constitute an unwarranted invasion of privacy.
We appreciate the cooperation extended to our investigator during the
on-site visit. If you have any questions or desire assistance in this or
any other matters related to civil rights, please contact Ms. Sandra W.
Stephens, Division Director, Postsecondary Education Division at (214)
767-3985.
Taylor D. August
Regional Civil Rights Director
Region VI
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