American Samoa Education Department Violating Federal Special Education Laws

USDOE finds merit to complaints filed by parents of disabled students

By Fili Sagapolutele

PAGO PAGO, American Samoa (The Samoa News, Nov. 11, 2016) – The local Education Department (ASDOE) failed to provide free appropriate education to a student with special needs and therefore ASDOE violated certain provisions of federal law, according to the US Department of Education’s Office of Civil Rights findings and conclusion covering four Legal issues following separate complaints filed by parents of four disabled students.

As previously reported by Samoa News, the ASDOE Special Education Division receives about $6 million annually from USDOE. And during a news conference in August this year, an ASDOE official told reporters that for school year 2016-2017, Special Education is getting $6.3 million with nearly 90% of the funds going to personnel costs for teachers as well as in the area of “related services” covering specialized professions such as physiologist, pathologist, physical therapist, occupational therapist, school physiologist.

And because ASDOE, a public entity, receives USDOE financial assistance, it is subject to federal laws, which prohibit disability discrimination in programs and activities funded by USDOE, according to—the OCR’s 88-page letter last week to one of the four parents who filed complaints with OCR.

The students are identified in the OCR report as Student A, Student B, Student C and Student D. Complaints filed by parents of the four students focused on school year 2013-2014. (See Samoa News edition last Friday for Issues One and Four for details)

Regarding Legal Issue Two, investigated by OCR, deals with Student C, who —according to OCR evidence, didn’t receive required behavioral occupational therapy and speech therapy services and did not receive necessary physiological evaluation, all of which were necessary for the student to receive a “free appropriate public education”.

According to OCR, the ASDOE did not provide an applied behavior analysis therapist for the student, although the parent had paid for those services during the school year and it was required for the student to receive behavioral service two hours a day.

The student was also to receive occupational therapy services three hours a week from an occupational therapist, but ASDOE didn’t have one on staff in the school year. Therefore any informal therapy services provided to the student were not by an occupational therapist, said OCR.

Furthermore the student was required to receive speech therapy three times a week from a speech and language pathologist (SLP) and teacher, but ASDOE didn’t provide an SLP to evaluate the student, train the teacher, or provide speech therapy for the student, whose special education teacher spent five or ten minutes a day working with the student on speech and language issues.

OCR found the teacher is not trained, licensed, or certified in speech and language services and was not provided an evaluation or other plan to guide her with the speech therapy the student needed. The special education teacher told OCR she has not received training regarding speech and language pathology.

OCR says its investigation centered on whether ASDOE failed to provide the student with a free appropriate public education because special education and related services that were provided for the student were provided by staff members who were untrained, unlicensed and/or uncertified to provide the services — in violation of federal regulations relating to a free appropriation public education.

According to OCR, it found that ASDOE violated federal laws when it failed to provide free appropriate public education for the student.

In response, ASDOE voluntarily agreed to resolve the identified violation and will work to resolve it, through a settlement agreement reached between ASDOE and USDOE. ASDOE Acting Director Philo Jennings signed the agreement, which will be monitored by OCR, on Oct. 11th this year.

LEGAL ISSUE THREE

Parent for Student A complained to OCR that ASDOE failed to provide for the student mental health services for 45 minutes once a week. In response, ASDOE said it was unable to provide such services “due to numerous obstacles” including:

•     Local procurement office’s concerns that one local professional who had other contracts with other ASG agencies may not have enough time to devote to the student;

•     Efforts to seek assistance from professionals located outside of American Samoa were unsuccessful; and

•     Professionals who had worked in the past with ASDOE were either unavailable or were not longer interested in working with ASDOE.

OCR said it investigated whether ASDOE failed to convene a proper constituted team of individuals to make decisions about changes to the student’s special education placement when the district administration unilaterally decided that the student would not receive mental health counseling services previously required by an assessment team, which had determined the student required 45 minutes a week of mental health counseling services.

OCR found evidence did not establish ASDOE unilaterally changed the student’s placement with regard to mental health counseling services, but OCR noted that ASDOE’s failure to provide such services is already being addressed as part of the monitoring in another OCR settlement (which occurred about six years ago.) Part of that agreement required ASDOE to among other things, provide the necessary mental health service for the student.

Later this week Samoa News will report on several important issues outlined in the settlement agreement between ASDOE and USDOE.

The Samoa News
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