Mississippi Directors’ Conference
Special Education Law Update: Lessons Learned
June 12, 2013
Presenter: Art Cernosia, Esq.
Williston, Vermont
E-mail: acernosia@gmail.com
Federal Legal and Policy Update
Final IDEA Regulations Regarding Insurance
The United States Department of Education issued new regulations addressing parental
consent for the use of public benefits or insurance to cover the costs of special education
or related services. The final regulations revise 34 C.F.R. 300.154(d). A school no longer
needs to secure parental consent “each time” the school is seeking to use public benefits
or insurance. The Department’s summary of the final regulations state that the regulations
require that public agencies:
 obtain a one-time written consent from the parent after providing the written
notification before accessing the child’s or the parent’s public benefits or
insurance for the first time. This consent must specify (a) the personally
identifiable information that may be disclosed (e.g., records or information
about the services that may be provided to a particular child); (b) the
purpose of the disclosure (e.g., billing for services); and (c) the agency to
which the disclosure may be made (e.g., Medicaid). The consent also must
specify that the parent understands and agrees that the public agency may
access the child’s or parent’s public benefits or insurance to pay for services.
© 2013 Art Cernosia, Esq. - LLC
Reprinted by Permission
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 provide written notification to the child’s parents before accessing the
child’s or the parent’s public benefits or insurance for the first time and prior
to obtaining the one-time parental consent and annually thereafter. The
written notification must explain all of the protections available to parents
under Part B, as described in 34 CFR §300.154(d)(2)(v), to ensure that
parents are fully informed of their rights before a public agency can access
their or their child’s public benefits or insurance to pay for services under
the IDEA. The notice must be written in language understandable to the
general public and in the native language of the parent or other mode of
communication used by the parent unless it is clearly not feasible to do so.
The regulations took effect on March 18, 2013.
Note: The new regulations do not impact the requirement for the use of private insurance.
“Each time” the public agency proposes to access the parents’ private insurance, the
agency must obtain parental consent and inform the parents that their refusal to permit the
public agency to access their private insurance does not relieve the public agency of its
responsibility to ensure that all required services in the IEP are provided at no cost to the
parents.
Restraint and Seclusion
The United States Department of Education issued a guidance document entitled
Restraint and Seclusion: Resource Document (May 2012) which identifies 15 Principles
that should be considered as States and School Districts develop policies and procedures
addressing the use of restraint and seclusion in schools.
15 Principles
1. Every effort should be made to prevent the need for the use of restraint and for the use
of seclusion.
2. Schools should never use mechanical restraints to restrict a child's freedom of
movement, and schools should never use a drug or medication to control behavior or
restrict freedom of movement (except as authorized by a licensed physician or other
qualified health professional).
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3. Physical restraint or seclusion should not be used except in situations where the child's
behavior poses imminent danger of serious physical harm to self or others and other
interventions are ineffective and should be discontinued as soon as imminent danger of
serious physical harm to self or others has dissipated.
4. Policies restricting the use of restraint and seclusion should apply to all children, not
just children with disabilities.
5. Any behavioral intervention must be consistent with the child's rights to be treated with
dignity and to be free from abuse.
6. Restraint or seclusion should never be used as punishment or discipline (e.g., placing
in seclusion for out-of-seat behavior), as a means of coercion or retaliation, or as a
convenience.
7. Restraint or seclusion should never be used in a manner that restricts a child's
breathing or harms the child.
8. The use of restraint or seclusion, particularly when there is repeated use for an
individual child, multiple uses within the same classroom, or multiple uses by the same
individual, should trigger a review and, if appropriate, revision of strategies currently in
place to address dangerous behavior; if positive behavioral strategies are not in place,
staff should consider developing them.
(Note:As used in this document, the phrase "dangerous behavior" refers to behavior that
poses imminent danger of serious physical harm to self or others.)
9. Behavioral strategies to address dangerous behavior that results in the use of restraint
or seclusion should address the underlying cause or purpose of the dangerous behavior.
10. Teachers and other personnel should be trained regularly on the appropriate use of
physical restraint, seclusion and appropriate alternatives such as positive behavioral
interventions and supports and, only for cases involving imminent danger of serious
physical harm, on the safe use of physical restraint and seclusion.
11. Every instance in which restraint or seclusion is used should be carefully and
continuously and visually monitored to ensure the appropriateness of its use and safety of
the child, other children, teachers, and other personnel.
12. Parents should be informed of the policies on restraint and seclusion at their child's
school or other educational setting, as well as applicable Federal, State, or local laws.
13. Parents should be notified as soon as possible following each instance in which
restraint or seclusion is used with their child.
14. Policies regarding the use of restraint and seclusion should be reviewed regularly and
updated as appropriate.
15. Policies regarding the use of restraint and seclusion should provide that each incident
involving the use of restraint or seclusion should be documented in writing and provide
for the collection of specific data that would enable teachers, staff, and other personnel to
understand and implement the preceding principles.
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FERPA Amendments--- The Uninterrupted Scholars Act (USA)
S. 3472
1.
An agency caseworker or other representative of a State or local child welfare
agency has the right to access the student’s education records without parental
consent when such agency or organization is legally responsible, in accordance
with State law, for the care and protection of the student, provided that the
education records, or the personally identifiable information contained in such
records, of the student will not be disclosed by such agency or organization,
except to an individual or entity engaged in addressing the student's education
needs and authorized by such agency or organization to receive such disclosure
and such disclosure is consistent with the State laws applicable to protecting the
confidentiality of a student's education records.; and
2.
FERPA was also amended to address a situation when educational records are
ordered to be provided to comply with a judicial order, or pursuant to any lawfully
issued subpoena. In most cases the school must notify the parents and the students
of all such orders or subpoenas in advance of turning the records over to comply.
The amendment carves out an exception when a parent is a party to a court
proceeding involving child abuse and neglect (as defined in section 3 of the Child
Abuse Prevention and Treatment Act (42 U.S.C. 5101)) or dependency matters,
and the order is issued in the context of that proceeding. In that case, additional
notice to the parent by the educational agency or institution is not required.
Case Law Update
I.
Child Find Issues
A.
The United States Department of Education issued a clarification memo
that it would be inconsistent with the IDEA’s evaluation procedures for a
school to reject a referral for a special education evaluation from a parent
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and delay the provision of an initial evaluation on the basis that the student
has not participated in an RTI (Response to Intervention) strategy or
framework. The IDEA allows a parent to request an initial special
education evaluation at any time.
In addition, although the IDEA does not prescribe a specific timeframe
from referral for evaluation to requesting parental consent to evaluate, it is
the Department’s policy that the school must seek parental consent within
“a reasonable period of time” after receiving a referral. If the school does
not feel a special education evaluation is warranted and denies the parent’s
request, the school must provide written notice of refusal to evaluate the
student which is subject to a due process hearing or an administrative
complaint should the parent challenge the school’s decision. Memorandum
to State Directors of Special Education 56 IDELR 50 (United States
Department of Education, Office of Special Education Programs (2011)).
Note: In Mississippi, when a parent, public agency or the Teacher Support
Team makes a written request for an initial evaluation, a multidisciplinary
evaluation team must meet within ten (10) school days to consider the
request. If, after reviewing the request and other pertinent documentation,
the multidisciplinary evaluation team suspects the child may have a
disability, Written Prior Notice for Initial Evaluation must be given to the
parent within five (5) school days of the meeting.
B.
The Court found that the school district failed to adhere to its child find
efforts under the IDEA. Based on the student’s record of consecutive
failures on state assessments, continuing difficulty in multiple subjects and
the inability of prior accommodations under Section 504 to improve his
performance, the school had reason to suspect the student had a disability.
In addition, the Court found that when a parent requests a special education
evaluation, the IDEA gives the parent a right to the evaluation and
overrides local district policy which would require a general education
intervention team to first consider interventions before conducting the
evaluation. In those instances, the required use of the general education
intervention team impedes the exercise of rights guaranteed by federal law
and would violate the IDEA. El Paso Independent School District v.
Richard R., 50 IDELR 256, 567 F. Supp. 2d 918 (United States District
Court, Western District, Texas (2008). Appealed on other grounds.
Lesson Learned
It is vitally important to make sure your local policies and procedures (and
staff training) include the process for making a special education referral
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and a process for receiving and acting on a parent’s referral. In particular, it
is important to address the relationship between the general education
intervention and support system and the special education child find
system.
C.
A 9th grade student was placed in an alternative high school due to several
incidents of misbehavior and truancy. After the placement, the parent
provided the school with a private psychological evaluation report,
conducted when the student was in 5th grade, diagnosing the student with an
ADHD. The parent in requesting a Section 504 plan noted that her student
had lost self-esteem and was angry due to his parents’ divorce, had sleeping
problems and was presently seeing a psychologist. He was placed on a
Section 504 plan in January of his 9th grade.
In April, the parent requested a due process hearing claiming the school
failed to identify him as a special education student violating the school’s
IDEA child find obligations. The school offered to conduct a special
education evaluation in May, however , the parent did not provide consent
for the evaluation until August. He was evaluated and found not to be
eligible for IEP services. The hearing officer affirmed that decision.
The parent then provided the school with a physician’s report diagnosing
the student with rheumatoid arthritis. Based on that diagnosis, the school
conducted another evaluation and determined the student was IEP eligible.
Everyone agreed that the IEP services provided were appropriate. The
parent, however, maintained that her student should have been identified as
IEP eligible sooner than he was.
The Court of Appeals held that the school district did not violate its’ child
find obligations under the IDEA since, prior to the diagnosis of rheumatoid
arthritis, the student was not IEP eligible since he was not “in need of
special education”. The Court stated that the “IDEA does not penalize
school districts for not timely evaluating students who do not need special
education”. D.G. v. Flour Bluff Independent School District 59 IDELR 2
(United States Court of Appeals, 5th Circuit (2012)) Note: This is an
unpublished decision.
D.
A student struggled with reading and behavioral problems starting in
kindergarten. The school was providing additional assistance to the student
from kindergarten through the end of the second grade. The parents
requested a special education evaluation before the start of the third grade
and provided the school with an independent evaluation which diagnosed
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the student as having an ADHD. The school evaluated the student and
found him eligible under the Other Health Impaired category.
The parents then initiated a due process hearing for compensatory
education services alleging that the school failed to timely evaluate the
student under its child find obligations. The Court upheld the denial of a
compensatory education award.
The Court noted that the measures the school did take to assist the student
in the classroom militate against finding a child find violation. His teachers
did not neglect his difficulties and took proactive steps to afford him extra
assistance and worked closely with his parents to maximize his potential for
improvement. It would be wrong to conclude that the school failed to
identify the student as an IEP student when it offered him substantial
accommodations, special instructions, additional time to complete
assignments, and one-on-one and specialist attention en route to eventually
finding a disability. In sum, the Court concluded that schools need not rush
to judgment or immediately evaluate every student exhibiting belowaverage capabilities, especially at a time when young children are
developing at different speeds and acclimating to the school environment.
D.K. v. Abington School District 59 IDELR 271 (United States Court of
Appeals, 3rd Circuit (2012)).
Lesson Learned
Schools must document parent’s referrals for special education evaluations,
the school’s response to the referral and any input provided by the parents
regarding the student’s needs.
Evaluation and eligibility determinations should address not only the
ultimate conclusion reached but it is extremely important to include
documentation as to the Team’s basis for its decision. Courts and Hearing
Officers will generally defer to a Team’s decision when the proper process
is followed and the Team articulates the educational rationale for its
decision.
E.
A student with a disability was removed from the public school and placed
in a private school by his parents. Two years later, the parents asked the
public school to reevaluate their student and prepare an IEP in order for
them to determine whether they would re-enroll their student in the public
schools. The public school refused since the student was not presently
enrolled in the public schools.
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The Court held that the IDEA’s language makes clear that where parents
request a reevaluation of their child for purposes of having an offer of a
FAPE made for him, and the child is domiciled in the district, the school
district must comply. A student’s residency rather than enrollment triggers
a district's FAPE obligations. The Court thus held that "refusing to do an
IEP pre-enrollment constitutes" a violation of the IDEA. Moorestown
Township Board of Education v. S.D. 811 F.Supp.2d 1057, 57 IDELR 158
(United States District Court, New Jersey (2011)).
Lesson Learned
Enrollment in the public school is not a precondition to evaluating a student
and preparing an IEP if found eligible. Also, the legal residency of a
student placed by their parents is not determinative of which local
education agency (LEA) is responsible for child find.
The United States Department of Education issued a guidance letter stating
that parents of students who they have placed in private non-profit
elementary or secondary schools may request a special education evaluation
from the LEA where the private school is located (for the purpose of
considering the student for equitable services) and from the LEA of
residence assuming the private school is not located in the district of
residence (for the purpose of making a FAPE available). Both districts
would be required to conduct an evaluation. The Department of Education
noted that although parents have this right, the Department discourages
parents from requesting an evaluation from two districts. Letter to Eig 52
IDELR 136 (United States Department of Education, Office of Special
Education Programs (2009)).
If two LEAs are involved in child find, parental consent must be obtained
before personally identifiable information is released between officials in
the LEA where the private school is located and officials in the LEA of the
parent’s residence. (34 CFR 300.622 (a))
Child find activities must allow for the equitable participation for parentally
placed private school students. The IDEA requires that the LEA consult
with appropriate representatives of private schools that serve children with
disabilities and representatives of parents who have placed their children in
private schools on how to carry out child find activities. In addition,
expenditures for child find are not considered as part of the pro- rated
amount which LEAs need to spend on services for private school children
with disabilities.
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As applied to preschoolers, ages 3-5, the agency responsible for child find
depends on whether the child is parentally placed in a day care center or
preschool, meeting the state’s definition of an elementary school. If yes, the
LEA where the private preschool program is located is responsible for child
find. If no, the LEA of residence is responsible for child find Letter to
Smith, (United States Department of Education, Office of Special
Education Programs (2006)).
F.
The Court affirmed the District Court’s conclusion supporting the use of a
general education intervention team as part of the regular pre-referral
process before a student would be evaluated for special education services.
The Court noted that the use of alternative programs is not inconsistent with
the IDEA for it is sensible policy for a school to explore options in the
regular education environment before designating a child as a special
education student. The process did not act as a “roadblock” to prevent the
parents from requesting an evaluation at any time. In this case, the parents
had never submitted a request to have their child evaluated.
Lastly, the Court concluded that the IDEA’s procedural safeguards do not
apply to general education interventions and therefore the parents do not
have a legal right to be part of such team. The mere discussion of a possible
special education referral by the team does not become a special education
referral triggering the IDEA’s procedural protections. A.P. v. Woodstock
Board of Education 370 F.Appx. 202, 55 IDELR 61 (United States Court of
Appeals, 2nd Circuit (2010)). Note: This is an unpublished decision.
Lesson Learned
Keep parents informed when their child is “referred” to a general education
intervention process and of the interventions received. Just because the
term “referral” is used does not make it a part of the IDEA’s child find
process. The IDEA procedural rights do not apply and the procedural
safeguards are not sent to the parents until or unless a child is referred for a
special education evaluation.
II.
Evaluation Issues
A.
The school, by referring a family to an evaluation center to determine
whether the child with a disability was also autistic, violated its obligation
under the IDEA to evaluate the student in all areas of suspected disability.
The Court held that a school cannot abdicate its affirmative duties under the
IDEA by simply referring the parents to an evaluation center since it would
not ensure that the child is assessed. The Court concluded that such
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procedural deficiency denied the student a FAPE. N.B. v. Hellgate
Elementary School District 541 F.3d 1202, 50 IDELR 241 (United States
Court of Appeals, 9th Circuit (2008)).
B.
The Court concluded that the school violated its responsibility under the
IDEA’s child find provisions since it required the parent to provide a
medical diagnosis from the child’s physician to complete the evaluation to
determine if the student qualified under the Other Health Impairment
category as a student with an ADHD. The Court stated that a school cannot
shift their responsibility to parents for completing a special education
evaluation including a medical diagnosis if necessary. The school is
responsible to ensure that it assesses the student in all suspected areas of
need before the evaluation can be complete. M.J.C. v. Special School
District No.1 58 IDELR 288 (United States District Court, Minnesota
(2012)).
Lesson Learned
An LEA has the legal obligation to provide ALL of the necessary
evaluations at no cost to the parent. A school cannot fulfill this
responsibility by making a referral to the parent or asking the parent to
follow up the with child’s Doctor.
C.
The parents of a student with autism and a speech and language impairment
unilaterally placed the student in a private school for students with autism.
Six months after being placed in the private school by his parents the
family experienced two tragedies. The family house burned down and two
days later the student’s father passed away. Shortly after the tragedies, the
IEP that had been previously developed by the school district expired.
The student’s mother initiated a due process hearing a few months later
seeking reimbursement for the private school placement. The parents
asserted that when the IEP expired in mid-school year, given the two
tragedies the student experienced, the school district was obligated to
update the IEP placing him at the private school since transitioning him
during this difficult time would disrupt his education.
The Court of Appeals affirmed the ruling in favor of the school district. In
the decision the Court held if a student is enrolled at a private school
because of a parent's unilateral decision, the school district does not
maintain an obligation to provide an IEP. However, a parent is entitled to
request that the school conduct a reevaluation of the student's IEP at any
time. In this case, the parent never requested that the school perform such a
reevaluation of student’s IEP and never informed the school district of any
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intent to re-enroll the student in public school. D.P. v. Council Rock
School District 58 IDELR 243 (United States Court of Appeals, 3rd Circuit
(2012)). Note: This is an unpublished decision.
D.
The Court held that by imposing numerous conditions on the reevaluation
(including naming the person who was required to conduct the reevaluation
and the parents’ right to meet with the evaluators prior to and after the
evaluations prior to the submission to the Team) the parents in effect
refused to consent. The Court held that the parents were not entitled to an
Independent Educational Evaluation at public expense since they did not
effectively allow the school the right to conduct a reevaluation. G.J. v.
Muscogee County School District 668 F.3d 1258, 58 IDELR 61 (United
States Court of Appeals, 11th Circuit (2012))
Lesson Learned
The school has the right to conduct a special education evaluation or
reevaluation with qualified individuals of its choice. The evaluations must
follow the standard conditions established by the maker of the evaluation
instrument.
E.
The Court upheld the validity of the IDEA regulations addressing a
parent’s right to obtain an Independent Educational Evaluation (IEE) at
public expense if they disagree with the school’s evaluation of their student.
Although the IDEA statute does not expressly state that schools must pay
for a parent's IEE, the Court concluded that when Congress reauthorized the
IDEA it sought to "reaffirm support for the program and its existing
regulations" which included a parent's right to an IEE at public expense.
Finally, the Court held that even if some ambiguity existed within the
statute regarding reimbursement, the Department of Education's
determination that parents are entitled to public reimbursement is afforded
deference because the regulation is not "arbitrary, capricious, or manifestly
contrary to the statute."
Therefore, the Court affirmed the District Court’s decision which also
rejected the school’s argument that the IDEA requires the parents to first
notify the school of their intention to seek an IEE and engage in discussions
with the school as a precondition of being reimbursed. Phillip and Angie C.
v. Jefferson County Board of Education 701 F.3d 691, 60 IDELR 30
(United States Court of Appeals, 11th Circuit (2012)).
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F.
The school refused the parents request for a publicly funded Independent
Educational Evaluation (IEE) and initiated a due process hearing. The
hearing officer found that the school’s evaluation was inappropriate and
ordered the school to conduct additional assessments.
The Court held, as a matter of law, the hearing officer erred by not ordering
the school to pay for the IEE. When the hearing officer concluded that the
evaluation was inappropriate, the student “was entitled to an IEE at public
expense as a matter of law”. The IDEA regulations regarding IEEs provide
“mandatory relief” in such a situation. M.Z. v. Bethlehem Area School
District 60 IDELR 273 (United States Court of Appeals, 3rd Circuit
(2013)) Note: This is an unpublished decision.
III.
Eligibility Issues
A.
A student diagnosed as having a central auditory processing disorder and an
attention deficit hyperactivity disorder was found not to be eligible for
special education.
The Court noted the Team reviewed the student's prior school records,
psychological and medical reports, standardized testing data, grades,
attendance records, teacher observations and reports, parental input, student
input, and student work samples. Based on this information, the Team
determined that the student did not require special education services
because she was able to perform and compete successfully in the general
education classes with accommodations and modifications.
The Court concluded that the student provided no support for her claim that
some of the specific modifications in her 504 plan were "specialized
instruction" within the meaning of the IDEA. The Court affirmed the
hearings officer's conclusion that these reading and math classes were not
"special education" classes, but rather were regular education classes with
small enrollments designed to provide additional support and were open to
many types of students who needed additional help. C.M. v. Hawaii
Department of Education 58 IDELR 151 (United States Court of Appeals,
9th Circuit (2012)) Note: This is an unpublished decision.
Lesson Learned
In order to be found eligible for IEP services, the Team must consider and
document three criteria: the student has met at least one of the disability
categories; the disability adversely effects educational performance; and the
student is in need of special education (specially designed instruction).
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Make sure that everyone on the Team is aware of the three criteria. In
addition, it is important to clarify that a disability label or medical diagnosis
is not itself sufficient to make a student eligible for special education
services.
B.
A child must be found to have a disability and be in need of special
education in order to be eligible for an IEP. OSEP issued guidance as to
what constitutes special education, that is, specially designed instruction
under the IDEA.
OSEP opined that the fact that services may also be considered "best
teaching practices" or "part of the district's regular education program" does
not preclude those services from meeting the definition of "special
education" or "related services". The LEA must provide a child with a
disability specially designed instruction that addresses the unique needs of
the child that result from the child's disability, and ensures access by the
child to the general curriculum, even if that type of instruction is being
provided to other children, with or without disabilities, in the child's
classroom, grade, or building. Letter to Chambers 59 IDELR 170 (United
States Department of Education, Office of Special Education Programs
(2012)).
C.
The United States Office of Special Education Programs (OSEP) issued a
letter clarifying that school districts in States that have adopted academic
achievement standards (such as the Common Core Standards) must ensure
that all children with disabilities, including those with high cognition, have
available to them a FAPE that emphasizes special education and related
services designed to meet their unique needs and prepare them for further
education, employment and independent living. Therefore, each State must
ensure that FAPE is available to any child with a disability who needs
special education and related services, even though the child has not failed
or been retained in a course, and is advancing from grade to grade. There is
an obligation to make a FAPE available to an eligible child with a disability
even if that child meets the State's academic achievement standards.
A school district cannot rely on any single procedure as the sole criterion
for determining whether a child is a child with a disability and for
determining an appropriate educational program for the child. In
conducting the evaluation of a child suspected of having a disability,
including a child with high cognition, a public agency must use a variety of
assessment tools and strategies to gather relevant functional,
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developmental, and academic information, including information provided
by the parent, that assists in determining whether the child is eligible for
special education and, if so, the educational needs of the child. OSEP has
had a longstanding position that the educational needs of a child with a
disability "include nonacademic as well as academic areas." In determining
whether a student’s disability has an “adverse affect on a child’s
educational performance” putting the child in need of special education, the
term "educational performance" means “more than academic standards as
determined by standardized measures”. Letter to Addressee 112 LRP 52261
(United States Department of Education, Office of Special Education
Programs (2012)).
D.
A student on an IEP in California moved to Washington State. The new
school district sought parental consent to conduct an evaluation to
determine the student’s eligibility for special education under Washington
standards. The parent refused to provide consent for the evaluation and the
school district requested a due process hearing challenging the refusal.
The court upheld the decision of the administrative law judge granting the
new school district the right to evaluate the student over the parents’
objection and refusal to provide consent. The court rejected the argument
that since the student was receiving services in California he automatically
became eligible for special education services in his new state. The IDEA
does not require the new district to "demonstrate" or "prove" that another
evaluation is necessary. Nor does the IDEA authorize evaluations only "if
necessary." Rather, school districts may schedule evaluations "if
determined to be necessary by such agency." J.B. v. Lake Washington
School District 60 IDELR 130 (United States District Court, Western
District, Washington (2013))
E.
A student attended a public school and was found eligible for special
education and received IEP services toward the end of the school year. The
parents sent the student to a private school for the following school year at
their expense. After the school year in the private school, the parents then
enrolled the student in a new public school district to which they moved.
Although the school staff was informed by the parents that the student had
been diagnosed as having an ADHD and had been on an IEP in his prior
public school, the student was placed on a Section 504 plan. Almost three
years later, the student was found eligible for IEP services.
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The Court affirmed the Federal Magistrate’s decision that the student
remained an IDEA-eligible student upon his transfer to the new school
district. Once a student is identified as IDEA-eligible, a reevaluation of his
eligibility need not occur for a period of as long as three years -- even
longer if the local educational agency and the parents agree that
reevaluation is unnecessary. Unless the eligibility of a student with a
disability is terminated because he or she has graduated from secondary
school with a regular diploma or has exceeded the age eligibility for a
FAPE under state law, a school must evaluate the student before
determining that he or she is no longer eligible for IEP services. No
exception is made for children who transfer from a private school to a
public school or whose IEP has expired. As a result, the Court concluded
that the student had been denied a FAPE and private school tuition was
awarded. Regional School Unit 51 v. Doe 60 IDELR 197 (United States
District Court, Maine (2013))
Lesson Learned
When a student moves into your school district, proactively ask the parent
if their student was involved in a special program such as special education.
Request from the former school district the student’s educational records
and specifically request all special education records.
IV.
IEP/FAPE
A.
B.
The U.S. Supreme Court in Board of Education of the Hendrick Hudson
Central School District, et al. v. Rowley, et al. (102 S. Ct. 3034, IDELR
553:656 (1982)) held that an inquiry in determining whether a FAPE is
provided is twofold:
1.
Have the procedures set forth in the IDEA been adequately complied
with?
2.
Is the IEP reasonably calculated to enable the child to receive
educational benefits?
Procedural Issues
1.
The parents had a long standing dispute with the IEPs developed for
their son with autism and as a result requested 4 due process
hearings. While the due process hearing was pending, a new IEP was
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not developed based on the school’s understanding that “stay put”
prevented them from doing so. The Court held that the school
district deprived the student of a FAPE since it relied on an outdated
IEP while the due process hearing was pending.
The Court held that the school district “could not simply ignore its
affirmative duty under the IDEA by postponing its obligation to
revise the outdated IEP.” The mere existence of a "stay put" order
did not excuse the school district from its responsibility to have a
statutorily compliant IEP in place at the beginning of each school
year. Neither the IDEA nor its implementing regulations qualifies
any duty imposed on a state or local educational agency contingent
upon parental cooperation
Although “stay put” prevents a school from unilaterally changing the
student’s educational placement, the school district can satisfy its
statutory obligations to review and revise the IEP without effecting a
change in his educational placement. The Court held that updating a
student's present level of academic achievement and functional
performance and establishing corresponding goals and objectives
does not qualify as a change to a student's educational placement, so
long as such revisions do not involve changes to the academic
setting in which instruction is provided or constitute significant
changes in the student's educational program. Anchorage School
District v. M.P. 689 F.3d 1047, 59 IDELR 91 (United States Court
of Appeals, 9th Circuit (2012)). Note: This opinion replaced a
memorandum decision issued by the Court in November of 2011.
Lesson Learned
Never let a student’s IEP expire even if there is a pending due
process hearing.
Schedule the annual IEP Team review weeks before the expiration
of the current IEP allowing sufficient time to update the evaluation,
if needed, and conduct an IEP Team meeting at a mutually
convenient time.
2.
The parents challenged the IEP Team’s decision to change their
student’s placement to a more restrictive setting. The parents argued
that the IEP change was not valid because they objected. They
16
contend that an IEP change must be agreed upon by the entire IEP
Team to be validly implemented.
The Court held that although the IDEA requires that parents be
afforded a meaningful opportunity to participate in the IEP process
and requires the IEP Team to consider parental suggestions, the
school is not required to obtain the parents' consent to implement an
IEP change. The proper recourse for parents who disagree with the
contents of their child's IEP is to request a due process hearing. K.A.
v. Fulton County School District 59 IDELR 248 (United States
District Court, Northern District, Georgia (2012)). Note: It is
important to check your state’s legal requirements since some states
require parental consent before making a placement or service
change in an IEP.
3.
An LEA must provide prior written notice when a school district
proposes or refuses to initiate or change the provision of FAPE as a
result of a decision at an IEP Team meeting. There is no requirement
in the IDEA regarding the point at which the written notice must be
provided as long as it is provided a reasonable time before the LEA
actually implements the action. This provides parents, in the case of
a proposal or refusal to take action, a reasonable time to fully
consider the change and respond to the action before it is
implemented. Providing prior written notice in advance of an IEP
team meeting could suggest that the public agency's proposal or
refusal was determined before the meeting and without parental
consent. Letter to Chandler 112 LRP 27623 (United States
Department of Education, Office of Special Education Programs
(2012))
Lesson Learned
Anytime the school is proposing to change or refusing to change the
student’s evaluation, identification, educational placement or
provision of FAPE, the school must give the parents prior written
notice. Such notice is required even if the parent has attended and
participated in the meeting where the decision was made.
4.
A student with autism had a full time one to one paraprofessional
assigned to him as indicated by his IEP. The paraprofessional was
provided under contract by the school with a non-public agency for
four years. The non-public agency and school executed a mutual
agreement to terminate services to the school. The school notified
17
the student’s parents that the school would be providing the
paraprofessional for their student under a contract with another
agency. The parents filed a due process hearing complaint alleging,
among other issues, that the school violated the IDEA by
predetermining that the student’s IEP would not include an adequate
plan for transitioning the student to the new paraprofessional.
The Court, in affirming the Administrative Law Judge, held that the
school has the power unilaterally to choose the service provider so
long as this choice does not affect the substantive quality of a
student's IEP, and a student's IEP does not require the services of a
particular agency. The IDEA provides no relief to a parent who does
not agree with the school’s choice of provider. Also, the record did
not support that the new agency or paraprofessional were unqualified
for the job. The bottom line was that the student continued to receive
the same IEP services with a different company providing them.
Z.F. v. Ripon Unified School District 60 IDELR 137 (United States
District Court, Eastern District, California (2013)).
Lesson Learned
Although personnel assignments may be one of the most important
decisions a school makes regarding a student’s success in school, it
is important to inform the IEP Team which includes the parent that
personnel decisions are not for the Team to make.
5.
The United States Office of Special Education Programs (OSEP)
stated that in intra-state transfer situations, the child's newlydesignated IEP Team in the new public agency, which includes the
child's parents, determines those services that are comparable to the
services that were described in the child's IEP from the previous
public agency. Consistent with this interpretation, if the new public
agency convenes a meeting of the IEP Team for this purpose, the
required IEP Team participants listed must be included. However,
any of the IEP Team participants may be excused if there is written
consent of the parent and the local education agency. In the
alternative, a parent and a public agency may agree not to conduct an
IEP Team meeting and adopt temporary IEP goals as provided for
under the IDEA regulation (34 CFR 300.324(a)(4)). Under that
provision, the parent and the public agency may agree to make
changes after the annual IEP Team meeting, and may develop a
written document to amend or modify the child's current IEP to
address the temporary IEP goals for comparable services. The new
18
IEP Team must be informed of the changes and the written
document would be in effect only until the new public agency either
adopts the child's IEP from the previous public agency or develops,
adopts, and implements a new IEP for the child that meets IEP
requirements. Letter to Finch 112 LRP 23103 (United States
Department of Education, Office of Special Education Programs
(2012))
6.
The parents alleged that the school district violated the IDEA by
unilaterally changing the IEP after the IEP meeting. An IEP meeting
was held but the IEP document itself was not finalized at the
meeting. In preparing the final IEP as an offer of FAPE, the Special
Education Director sought clarification from the speech provider
regarding one speech goal on which there had been discussion, but
no agreement, at the meeting. The final IEP was then sent to the
parents who initiated a due process hearing.
The Court affirmed the Administrative Law Judge who found that
"the District's modification of [the goal] arose directly out of the IEP
meeting, and another IEP meeting was not required." She also found
that the goal alteration was "minor." Thus, the ALJ found that the
conversation at issue did not "significantly deprive the parents of
meaningful participation in the IEP process ...." The Court of
Appeals affirmed and concluded that the school district had
complied with both the procedural and substantive requirements of
the IDEA. J.W. v. Governing Board of East Whittier City School
District 58 IDELR 211 (United States Court of Appeals, 9th Circuit
(2012)). Note: This is an unpublished decision.
C.
Substantive Issues
1.
The parents challenged the IEP developed for their student who is 15
years old and has significant developmental delays affecting his
speech, expressive and receptive communication, reading, focus, and
overall cognition. The hearing officer and District Court found that
his IEP provided him with a FAPE.
On appeal, the parents argued that Court and hearing officer erred in
concluding that the IEP complied with the IDEA without first
determining the student’s potential for learning and self-sufficiency.
The Court of Appeals stated that in most cases an assessment of a
student’s potential would be a useful tool for evaluating the
19
adequacy of his or her IEP to determine if it was calculated to
provide the student with a meaningful educational benefit. However,
it is not always feasible to determine the potential for learning and
self-sufficiency with any precision, particularly where the student’s
disability significantly impairs his or her capacity for
communication. In that situation, even without a complete
understanding of the upper limits of the student’s abilities, there can
still be an assessment of the likelihood that the IEP will confer a
meaningful educational benefit by measurably advancing the student
toward the goal of increased learning and independence. If an IEP is
reasonably calculated to confer such a benefit, it complies with the
IDEA.
Therefore, the Court held it was not error to conclude prospectively,
that since the student’s previous IEPs had conferred meaningful
educational benefits, the challenged IEP was reasonably calculated
to do the same, having kept in place, and even supplemented, the
services offered by the previous IEPs. D.B. v. Esposito 675 F.3d 26,
58 IDELR 181 (United States Court of Appeals, 1st Circuit (2012)).
2.
The parents challenged their student’s IEP on several grounds
including the argument that the reading program in the IEP, Project
Read, failed to provide a scientifically research-based, peer reviewed
reading program.
The Court noted that in 2004 the IDEA was amended to require that
the IEP include “special education and related services and
supplementary aids and services, based on peer-reviewed research to
the extent practicable” (emphasis added). After reviewing the
administrative guidance from the U.S. Department of Education, the
Court observed that although schools should strive to base a
student's specially designed instruction on peer-reviewed research to
the maximum extent possible, the student's IEP team retains
flexibility to devise an appropriate program, in light of the available
research. Ultimately, the Court held that the IDEA does not require
a school district to choose the program supported by the optimal
level of peer-reviewed research. Rather, the peer-reviewed specially
designed instruction in an IEP must be "reasonably calculated to
enable the child to receive meaningful educational benefits in light
of the student's intellectual potential." Ridley School District v. M.R.
58 IDELR 271 (United States Court of Appeals, 3rd Circuit (2012))
Lesson Learned
20
Although reference to peer reviewed research is not an absolute
requirement, school members of Teams should be able to articulate
the educational basis of the Team’s decision for the individual
student.
3.
The parents removed their student with a disability from the public
school and placed him in a private school during the school year.
The parents challenged the IEP. The Court held that the IEP
provided the student with a FAPE. The parents, however, kept their
student in the private school for the next school year.
The public school prepared a new IEP for the next school year.
During the previous year while the student attended the private
school, the public school never observed the student, never met with
or otherwise attempted to evaluate the student during the year. The
Court held that this IEP was not appropriate since it was developed
without regard for any progress the student made during the previous
school year while in the private school. E.S. v. Katonah-Lewisboro
School District 59 IDELR 63 (United States Court of Appeals, 2nd
Circuit (2012)). Note: This is an unpublished decision.
Lesson Learned
Whether a student has been attending a private school, being home
schooled, not yet in school or attending another public school, IEP
Teams must make good faith efforts to obtain updated information to
be considered in preparing the IEP. It may be necessary to conduct a
reevaluation of the student. Also, parent input is a vital requirement
to an IDEA evaluation.
4.
The Court held that the IEP for a student with an emotional
disturbance provided the student with a FAPE. The evidence
supported the fact that the school implemented the student’s IEP and
that the team developed goals that reflected the student’s abilities.
Although the student consistently performed at least one grade level
below her peers, the IEP provided positive academic and
nonacademic benefits. The Court noted that under the IDEA
academic benefit should "be measured not by [a student's] relation to
the rest of the class, but rather with respect to the individual
student." L.F. v. Houston Independent School District 459 F.Appx.
358, 58 IDELR 63 (United States Court of Appeals, 5th Circuit
(2012)). Note: This is an unpublished decision. Petition for appeal to
the United States Supreme Court denied. Ruffin v. Houston
21
Independent School District 113 LRP 6979 (United States Supreme
Court (2013)).
5.
The parents of a student who is academically gifted and has an
Attention Deficit Disorder and learning disability in the area of
written expression alleged that their student was denied a FAPE
under his IEP.
The school contended that it provided a FAPE as evidenced in part
by the student’s better-than-average grades in mainstream general
education classes with supports and accommodations and his
continuous, timely progress toward high school graduation. The
parents alleged that the school cannot rely on the student’s academic
success in areas not affected by his disability in order to justify the
claim that a FAPE was provided. Rather, they assert that his IEPs
were not sufficiently individualized and the school afforded no
"academic benefit" tailored to his disability.
The Court of Appeals in overturning the District Court’s decision
that FAPE was denied stated that the lower court's reasoning was
flawed by its legal error in interpreting the "educational benefit"
afforded the student solely in terms of weaknesses caused by his
learning disability rather than his overall academic record. The Court
held that the student did make progress in written expression and the
student’s overall educational benefit, not solely disability
remediation, is IDEA's goal of providing “educational benefit” under
Rowley. Klein Independent School District v. Hovem 690 F.3d 390,
59 IDELR 121 (United States Court of Appeals, 5th Circuit (2012)).
Petition for appeal to the United States Supreme Court denied. 113
LRP 10911(United States Supreme Court (2013))
6.
A student with autism and a speech impairment was ultimately
placed by his parents in a private school program alleging that the
IEP developed for the student did not provide a FAPE. The hearing
officer and Court awarded partial reimbursement concluding that the
disputed IEP did not provide the student a FAPE but was corrected
by an IEP subsequently developed.
The Court of Appeals first observed that although “positive
educational outcomes can signal that an IEP is appropriate under the
IDEA, the appropriateness of [a student’s] IEP ultimately turns on
whether it was reasonably calculated to provide an educational
benefit and does not hinge on the showing of an actual positive
outcome.” In this case, the Court found the student was entitled to
reimbursement for only three weeks of private school tuition.
22
Two other aspects of this case are worth mentioning. The Court held
that the state’s one year statute of limitations did not apply since the
school withheld required information from the parents, an exception
to the statute of limitations. By failing to include a teacher of the
student or representative from the private learning center where the
student was receiving services to be members of the IEP Team
meeting, the school effectively withheld the availability of important
information from the parents.
Also, the Court upheld the lower court’s refusal to award the parent
attorney’s fees. The Court found that the parents had “unreasonably
protracted the controversy” by rejecting a settlement offer, without
explanation, by the school district which would have provided a
greater amount of reimbursement than ordered. S.H. v. Plano
Independent School District 487 F.Appx. 851, 59 IDELR 183
(United States Court of Appeals, 5th Circuit (2012)). Note: This is an
unpublished opinion.
V.
Related Services/Assistive Technology
A.
The United States Supreme Court Decision – Irving Independent School
District v. Tatro, 104 S. Ct. 3371, IDELR 555:511 (1984).
1.
B.
The United States Supreme Court established a three-prong test for
determining whether a particular service is considered a related
service under the IDEA. To be entitled to a related service:
a)
A child must have a disability so as to require special
education under the IDEA;
b)
The service must be necessary to aid a child with a disability
to benefit from special education; and
c)
The service must be able to be performed by a non-physician.
A school was ordered to provide a student with individual nursing services
as a related service in his IEP. The court followed a “bright line” rule in the
Tatro case. Since the services were not required to be administered by a
doctor and were supportive services necessary for the student to attend
school, they were required related services regardless of the cost Cedar
23
Rapids Community School District v. Garret F. 119 S.Ct. 992, 29 IDELR
966 (United States Supreme Court (1999)).
C.
The parents of children with cochlear implants initiated a lawsuit
under the IDEA alleging that the 2006 IDEA regulation excluding mapping
from the definition of related services contravenes the IDEA, exceeded the
U.S. Department of Education’s rulemaking authority and was arbitrary,
capricious and an abuse of discretion.
The Court upheld the challenged regulation finding that it was rationally
related to the objectives of the IDEA and was a permissible interpretation
of the IDEA by the U.S. Department of Education. Petit v. United States
Department of Education 58 IDELR 241 (United States Court of Appeals,
District of Columbia Circuit (2012)).
D.
A student with autism, an intellectual disability and speech impairment was
non-verbal. The student used sign language and communication devices in
school and home. At the end of the second grade, the IEP Team
recommended an assistive technology (AT) evaluation be conducted by
October of the third grade. The IEP Team was provided the AT evaluation
at the end of the third grade in preparation for the following year’s IEP.
The parent initiated a due process hearing challenging the appropriateness
of the third grade IEP primarily based on the delay in the AT assessment,
also the fact that the parent was not provided an opportunity for
participation at IEP meetings.
The Court found that although the principal occasionally ended the IEP
meetings early due to the parent’s emotional behavior which at times was
fueled by school staff, no denial of FAPE occurred. The school district
would promptly schedule follow-up IEP meetings with the parent and the
school usually sought to work cooperatively with the parents.
The Court of Appeals held that the IEP was not sufficiently individualized
due to the untimely consideration of the AT assessment by the IEP Team.
However, the Court concluded that the student was not denied a FAPE
since the student demonstrated positive academic and non-academic
benefits while using her previous AT devices. R.P. v. Alamo Heights
Independent School District 703 F.3d 801, 60 IDELR 60 (United States
Court of Appeals, 5th Circuit (2012)).
Lesson Learned
Even if the school prevails in a due process case or litigation, there is a loss
of relationship with the family and an emotional and fiscal cost. The Team
24
should appoint a person to take the lead to track any evaluations or actions
the Team determines necessary for the student.
VI.
Placement/Least Restrictive Environment
A.
The least restrictive environment for three siblings who have genetic and
neurological disorders is the IEP placement which was in the school
environment. Although the students’ physician recommended home bound
services due to their immune deficiencies, the Court held that based on the
testimony of an expert in pediatric infectious diseases and the fact that the
students have not been sick in several years, the school environment would
not pose any unusual health risk. Stamps v. Gwinnett County School
District 112 LRP 28567 (United States Court of Appeals, 11th Circuit
(2012)). Note: This is an unpublished decision. Petition for appeal denied
by the United States Supreme Court.
B.
In a guidance letter issued by the United States Department of Education,
the Department underscored that the LRE requirement does not distinguish
between school-aged and preschool-aged children and therefore, applies
equally to all preschool children with disabilities. The LRE requirements
under the IDEA state a strong preference for educating children with
disabilities in regular classes alongside their peers without disabilities. The
term regular class includes a preschool setting with typically developing
peers. [Note: For data collection purposes, the Department defines a regular
early childhood program as a program that includes at least 50 percent of
nondisabled children.] The IEP must include an explanation of the extent,
if any, to which the child will not participate with nondisabled children in
the regular class.
The public agency responsible for providing FAPE to a preschool child
with a disability must ensure that FAPE is provided in the LRE where the
child's IEP needs can be met, regardless of whether the local educational
agency (LEA) operates public preschool programs for children without
disabilities. LEAs that do not have such a public preschool program must
explore alternative methods to ensure that the LRE requirements are met for
that child. These methods may include: (1) providing opportunities for the
participation of preschool children with disabilities in preschool programs
operated by public agencies other than LEAs (such as Head Start or
community based child care); (2) enrolling preschool children with
disabilities in private preschool programs for nondisabled preschool
25
children; (3) locating classes for preschool children with disabilities in
regular elementary schools; or (4) providing home-based services. If a
public agency determines that placement in a private preschool program is
necessary for a child to receive FAPE, the public agency must make that
program available at no cost to the parent. Letter from OSEP 58 IDELR
290 (United States Department of Education, Office of Special Education
Programs (2012)).
C.
The parents of a student with a pervasive developmental disorder rejected
the school’s IEP that called for placement in a special program for
preschoolers with autism which initially did not provide for interaction with
typically developing peers. The public school then began to include a
"reverse-inclusion component" to the program which "allowed a child from
outside the classroom, either typical or preschool disabled, to come in to
play with the group in order to demonstrate appropriate social skills”. She
was unilaterally placed by her parents in an "inclusive" preschool, attended
both by children with disabilities and those without disabilities.
The Court concluded that the IEP placement met the LRE requirement. In
doing so, the Court accepted the Administrative Law Judge’s findings that
the student did not have the prerequisite skills for a less restrictive
environment such as a regular classroom, that she "demonstrated
inappropriate and stigmatizing behaviors," and needed a highly structured
environment. In addition, it was found that the student "would not have
benefited from a less restrictive environment ... [because she] wouldn't
notice her peers, and, therefore, would not gain from their modeling
appropriate behavior." L.G. v. Fair Lawn Board of Education 59 IDELR 65
(United States Court of Appeals, 3rd Circuit (2012)). Note: This is an
unpublished decision.
D.
A three year old pre-school student with autism was placed by the IEP
Team in a private “mainstream preschool” with additional therapy provided
at home. Subsequently, the IEP Team again determined she needed a
“small structured preschool or nursery education class to provide her with
same age appropriate role models in language and social skills". However,
the IEP then stated she would start her school year in a self-contained
special education class.
The Court affirmed the decision of the District Court that the evidence
convincingly demonstrated that placing the student in a self-contained
classroom violated IDEA's requirement that she be educated with non26
disabled children "to the maximum extent appropriate." The IEP never
stated that placement in a mainstream classroom would be inappropriate,
much less explained why that might be the case. The student was at a
critical stage in her development with regard to her social skills .
The Court ordered reimbursement for her private school placement finding
that it was appropriate. The private placement remedied the problem of
segregating the student from non-disabled peers by placing her in an
integrated classroom. Accordingly, because the student progressed in her
private placement, and because the placement remedied deficiencies in her
public placements, the Court found that the private placement was
appropriate. G.B. v. Tuxedo Union Free School District 486 F.Appx. 954,
60 IDELR 2 (United States Court of Appeals, 2nd Circuit (2012)). Note:
This is an unpublished decision.
Lesson Learned
Ensure that the Team has a continuum of placement options to discuss for
preschoolers with disabilities. If the student will not be placed in a setting
which allows interaction with peers who are non-disabled, the IEP must
document why---what supplementary services and aides the Team
considered and why the Team made its placement decision. The
unavailability of an integrated public preschool program is not a legal basis
for making a placement decision.
E.
A student with an intellectual disability and speech impairment had an IEP
which called for science and social studies objectives to be implemented in
a special education class rather than a general education classroom.
Because his parents disagreed with this decision, the student was allowed to
begin his sixth grade year in regular education social studies and science
classrooms. However, throughout this academic year his teachers reported
that he became increasingly overwhelmed by the difficulty of the general
education classes in social studies and science. The school at that point,
despite the parents’ objection, placed the student in special education
classes for these subjects as the IEP Team had determined.
The Court held that the LRE for these classes was in the special education
class. The Court noted that all the evidence suggested that the school
provided a great deal of accommodation for the student in the general
education program. He was assisted by aides at all times. His teachers
provided assignments that were modified up to 100 percent to
accommodate his skill level. Yet, he did not derive any significant
27
nonacademic benefit from placement in mainstream science and social
studies classes. J.H. v. Fort Bend Independent School District 482 F.Appx.
915, 59 IDELR 122 (United States Court of Appeals, 5th Circuit (2012)).
Note: This is an unpublished decision.
F.
A student with multiple disabilities was placed by the school district from
the third through sixth grades in a private school placement. (Note: the
sixth grade placement was made pursuant to a settlement agreement.)
The IEP Team, in preparing the seventh grade IEP, determined that the
student would be returned to the public school for reading services.
Preplanning notes from a preplanning meeting showed that the public
school members of the IEP Team recommended that the student be moved
back to his home school for his 7th grade IEP. The Court found more
troubling that the student’s teacher testified that school was prepared to "go
the whole distance this year which means the [parents] will be forced into
due process."
The Court concluded that while school officials may permissibly form
opinions prior to IEP meetings, the record here showed that the school went
beyond forming opinions and, instead, became impermissibly and deeply
wedded to a single course of action which amounted to a pre-determination
of placement. Therefore, the parents were denied a meaningful opportunity
to participate in the development of the IEP resulting in a denial of FAPE.
P.C. v. Milford Exempted Village Schools 60 IDELR 129 (United States
District Court, Southern District, Ohio (2013)).
Lesson Learned
Be very careful to avoid any placement pre-determination claims. Although
staff may discuss the students needs and prepare a draft IEP prior to the
meeting, the IEP Team must have an “open mind” to consider other
suggestions and recommendations from the parent. It is recommended that
any draft IEP be sent to the parent before the meeting. In addition, ask the
parent at the meeting if they have any questions, recommendations or
suggestions for the Team to consider. Of course, document!
G.
A class action was initiated by parents of students with autism who allege
that the School District transfers students with autism in kindergarten
through eighth grade without providing the level of parental notice and
involvement required under state and federal law.
If a student is identified as being a student with autism who requires access
to an autistic support classroom, the student is placed into one of three
autistic support classrooms based on "grade level": kindergarten through
28
second grade ("K-2"), third grade through fifth grade ("3-5"), and sixth
grade through eighth grade ("6-8"). Although there are three different
groups, a school sometimes offers only one grade level of autistic support.
When a student requiring autism support completes the highest grade level
provided in his or her current school, the school district transfers that
student to a different school where those services can continue to be
provided. The building assignment decision is not made by a student's IEP
team and parents are generally not involved in the process. This process is
referred to as an "upper-level transfer".
The school district conceded that it provides parents with no written notice
prior to the building assignment decision. Rather, the school district
generally does not advise parents that their child will be transferred until
after the decision concerning the transfer has been made. The first
notification to the student's parents about their child's transfer comes from
the student's school, and is usually issued in late spring.
The Court noted that IDEA requires that the school district provide for
meaningful parental participation and prior written notice whenever it
initiates or proposes to change the "educational placement" of a child and
that neither the text nor legislative history of the IDEA defines the term
"educational placement."
The Court found that an unplanned transition for children with autism, as
opposed to other students with disabilities such as a student with a specific
learning disability, is likely to affect their learning rate and learning
sequences. This is because difficulty with transition is one of the defining
characteristics of children with autism. Thus, despite the school district's
contention to the contrary, upper-leveling students with autism does not
merely change their physical surroundings; the transition is likely to have a
significant impact on their learning experience. The Court concluded that
under the particular facts of this case, upper-leveling students with autism
to a separate school building in the school district constitutes a change in
their "educational placement" under the IDEA. As a result, the school
district's process of upper-leveling children with autism violated the
procedural safeguards under the IDEA, and "seriously deprives" parents the
opportunity to participate in the decision-making process regarding the
educational placement of their autistic child. The school district was
ordered to alter its upper-leveling process for children with autism to
provide prior written notice and a level of parental participation that
complies with the procedural requirements under the IDEA. The Court did
note “by no means does our holding suggest that parents of children with
autism are entitled to any type of "veto power" over the final location
decision. We simply conclude that under the IDEA, the school district
cannot categorically deny parents the opportunity to provide input and
29
receive notice about the educational placement of their autistic child.” P.V.
v School District of Philadelphia 60 IDELR 185 (United States District
Court, Eastern District, Pennsylvania (2013))
Lesson Learned
Although placement determinations under the IDEA do not include what
specific classroom, teacher or school the student will attend, Courts are
now starting to look at how transitioning to a new environment will impact
the student’s ability to be successful. Consideration should be given and
discussed at the IEP Team meeting to any supports the student may need if
the student will be attending a new placement/location.
VII.
Unilateral Placements
A.
The United States Supreme Court in Burlington, MA v. Department of
Education et al., 105 S. Ct. 1996, IDELR 556:389 (United States Supreme
Court (1985), held that parents may be awarded reimbursement of costs
associated with a unilateral placement if it is found that:
1.
The school district’s IEP is not appropriate;
2.
The parent’s placement is appropriate; and
3.
Equitable factors may be taken into consideration
B.
Parental placement at a school which is not state approved or does not meet
the standards of the state does not itself bar public reimbursement under the
Burlington standard if the placement is “proper”. Florence County School
District Four et al. v. Carter, 114 S. Ct. 361, 20 IDELR 532 (United States
Supreme Court (1993)).
C.
The parents placed a student who was never deemed eligible for
special education in a private residential school. The Court held that the fact
that the student has never been deemed eligible did not act as a bar to the
parents’ right to seek a due process hearing for reimbursement.
The Court noted that the school district's argument that the IDEA limits
reimbursement to students who have previously received public special
education services is unpersuasive for several reasons:
30
1. It is not supported by the IDEA's statutory text, as the 1997 Amendments
to the IDEA do not expressly prohibit reimbursement in this situation:
2. The School District offered no evidence that Congress intended to
supersede the Burlington and Carter decisions;
3.It is at odds with IDEA's remedial purpose of "ensur[ing] that all children
with disabilities have available to them a [FAPE] that emphasizes special
education ... designed to meet their unique needs,"; and
4. It would produce a rule bordering on the irrational by providing a remedy
when a school offers a child inadequate special-education services but
leaving parents remediless when the school unreasonably denies access to
such services altogether. Forest Grove School District v. T.A., 129 S.Ct.
2484, 52 IDELR 151 (United States Supreme Court (2009)).
D.
The parents of a student who has a specific learning disability placed him in
a private special education school and sought reimbursement. The IEP
offered the student was deemed to be inappropriate.
However, the Court, in affirming the District Court, denied reimbursement
for the private school concluding that it too was inappropriate. The Court
noted that the parents bear the burden to prove that the unilateral private
placement was appropriate. While evidence of a student's success at the
private placement is relevant, such evidence is not sufficient by itself to
establish that the placement was appropriate. Here, the parents did not
satisfy their burden of showing that the student’s placement at the private
school was specifically designed to meet his unique needs. Although the
evaluation obtained by the parents recommended speech/language therapy
the parents acknowledged that the private school did not provide
speech/language therapy, but claimed they provided it privately with no
evidence introduced to support this claim. In addition, the reading services
recommended by the parent’s expert were not provided. R.S. v. Lakeland
Central School District 59 IDELR 32 (United States Court of Appeals, 2nd
Circuit (2012)). Note: This is an unpublished decision.
E.
In a unilateral placement case, the Court was asked to consider the
appropriateness of what was labeled "retrospective testimony," that is
testimony that certain services not listed in the IEP would actually have
been provided to the student if he/she had attended the school district's
proposed placement.
The parents urged the Court to adopt a rigid "four corners" rule prohibiting
any testimony about services beyond what is written in the IEP. Although
the Court declined to adopt a four corners rule, it held that testimony
regarding offered services may only explain or justify what is listed in the
written IEP. Testimony may not address or support a modification to
31
services that is materially different from the IEP, and thus a deficient IEP
may not be effectively rehabilitated or amended after the fact through
testimony regarding services that do not appear in the IEP. In addition, the
Court held that a school cannot present evidence that a student would have
had a specific teacher or specific paraprofessional. At the time the IEP is
developed the parents must decide whether to make a unilateral placement
based on the IEP, they may have no guarantee of any particular teacher.
Thus, the Court adopted the majority view of the Circuits that the IEP must
be evaluated prospectively as of the time of its drafting and therefore
retrospective testimony that the school district would have provided
additional services beyond those listed in the IEP may not be considered in
a unilateral placement case. R.E. v. New York City Department of
Education 694 F.3d 167, 59 IDELR 241 (United States Court of Appeals,
2nd Circuit (2012)).
Lesson Learned
Most Courts have interpreted the offer of FAPE to be those services
included in the IEP. IEPs should include all the services and supports that
the Team determines are required for a student to receive educational
benefit.
F.
A parent placed their student unilaterally in a private residential special
education school and sought reimbursement. The school district conceded
that it did not provide the student with a FAPE.
The Court of Appeals affirmed the denial of reimbursement finding that the
private school was not appropriate. In so doing, the Court stated that while
a parental placement is not subject to the same exacting standards as a
public placement “the restrictiveness of the school environment ‘remains a
consideration that bears upon a parent's choice of an alternative placement
and may be considered by a hearing officer in determining whether the
placement was appropriate’." In addition, academic progress alone is not
dispositive of appropriateness. In this case, the Court concluded that there
was no evidence that this “extremely restrictive residential immersion” was
appropriate for meeting the student’s educational needs. D.D-S v. Southold
Union Free School District 60 IDELR 94 (United States Court of Appeals,
2nd Circuit (2012)). Note: This is an unpublished decision.
G.
A parent of a student with an emotional disturbance made an out of state
unilateral residential placement and sought reimbursement. The school did
not appeal the finding that it denied the student a FAPE. However, the
32
school contended that reimbursement was not proper under the IDEA since
the services provided at the private placement did not constitute “special
education and related services” under the IDEA.
The Court in its analysis found that other Circuit Courts in the country have
applied two different standards in determining whether a private placement
is educationally necessary. After discussing each standard, the Court held
that the plain language of the IDEA sets out the legal standard to be applied
and thus it is unnecessary to adopt either standard. If FAPE has not been
provided, the private placement must be in a state accredited elementary or
secondary school that provides special education and related services. Here,
the student received specially designed instruction while at the private
placement (classroom instruction, one-on-one instruction outside the
classroom and directed homework) and related services required for her to
benefit from that instruction. Therefore, the Court concluded that
reimbursement for the private placement was appropriate. Jefferson County
School District R-1 v. Elizabeth E. 702 F.3d 1227, 60 IDELR 91 (United
States Court of Appeals, 10th Circuit (2012)).
H.
The Court of Appeals affirmed the hearing officer and the District Court
when it held that although the IEP did not provide the student a FAPE, the
parents were not entitled to reimbursement for their unilateral placement of
their child at a private special education program since the private program
was not “proper” under the IDEA. The Court previously ruled that a private
placement is "proper" if it "'provides educational instruction specially
designed to meet the unique needs of a handicapped child, supported by
such services as are necessary to permit the child to benefit from
instruction” ( see C.B.v. Garden Grove Unified School District) The Court
found that the hearing officer correctly concluded that the private program
was not appropriate for the student since the student made "meager"
progress in some areas and no progress in other areas while enrolled for
more than a year in the program.
In addition, the Court upheld the denial of reimbursement on equitable
grounds since both the private school and parents were uncooperative in the
development of the student's IEP. M.N. v. Hawaii Department of Education
60 IDELR 181 (United States Court of Appeals, 9th Circuit (2013)). Note:
This is an unpublished decision.
VIII. Behavior and Discipline
33
A.
The parents of a student with multiple developmental and intellectual
disabilities challenged the Constitutionality of the use of a particular desk
seeking monetary damages. The desk in question is U-shaped, such that
when a student's chair is completely pulled in, the student is surrounded by
the desk on three sides. The cutout portion of the desk is lined with rubber.
A wooden bar runs the length of the back of the desk. When a student is
sitting at the desk, the bar rests behind the student's chair preventing her
from pushing her chair out. A barrel bolt, akin to the fastener on the door of
a restroom stall, can be used to secure the bar.
The Court held that the use of the desk did not violate the Fourth or the
Fourteenth Amendments. The Court discussed three key facts that
supported its conclusion. First, while it is undisputed that the desk restricted
the student’s movement, the position that it forced her to assume -- seated
in a chair faced forward -- is the standard pose required of countless
schoolchildren across the nation. The restrictions imposed on her did not
remove her from the classroom environment. Second, the student had the
ability to remove herself from the restraints imposed on her by crawling
over or sliding under the front portion. Finally, the Court found significant
that the restraining mechanisms were not attached to her body. Physically
binding a student is a much more significant imposition on her dignity and
bodily integrity than the use of the desk.
The parent also contended that the desk violated the student’s rights by
restricting her liberty without due process. However, the Court held that
due process rights are not implicated by minimally restrictive actions and
cannot be triggered by every time-out and after-school detention. The Court
observed that her disabilities presented unique pedagogical challenges, and
it was certainly conceivable that requiring her to sit in a special desk was a
rational response to those challenges. Ebonie S. v. Pueblo School District
60 695 F.3d 1051, 59 IDELR 181 (United States Court of Appeals, 10th
Circuit (2012)). Petition for appeal to the United States Supreme Court
denied. 113 LRP 10906 (United States Supreme Court (2013)
B.
A 9 year old student with ADHD and "autistic-like" behaviors had an IEP
which included the use of a support room and a secure observation room
(SOR), when necessary, to address his extreme and/or dangerous behaviors.
The room is a regular-sized classroom where a student can go to take a
break, to refocus, and to complete work in a quiet area. There is an
observation window through which someone can observe from an adjoining
room and staff is required to complete written reports whenever a student
was sent to either the support room or the SOR.
The parents initiated a due process hearing challenging, among other issues,
the use of the secure observation room. The Court concluded that the
34
student was subject to continuing observations and evaluations by his
teachers and that numerous strategies and interventions designed with
specific positive behavior goals were implemented continuously for the
student. Furthermore, the overwhelming evidence showed that there was
not indiscriminate use of the SOR, but rather it was a "last resort" after all
other strategies had failed and by the end of the school year its use
drastically decreased. The Court therefore upheld that IEP as being
appropriate. Clark v. Special School District of St. Louis County 58 IDELR
126 (United States District Court, Eastern District, Missouri (2012)).
Lesson Learned
A behavioral component of an IEP should include a series of positive
supports and interventions. It is extremely important that the school
maintain data on the effectiveness of any intervention/support and review
the use of such intervention periodically.
C.
The parents of a student with autism challenged his IEP on several grounds
including their belief that the behavior intervention plan was inappropriate.
The behavior component called for the use of a “calming room” which was
a room the student was taken to when he became aggressive. The parents
insisted that the calming room be eliminated from the behavior plan citing
their independent educational evaluator’s recommendations.
The Court held that the IEP provided the student a FAPE and provided an
education in the least restrictive environment. The behavior intervention
plan included detailed strategies to address the student’s behavior
problems. The Court observed that it is "largely irrelevant" if the school
district could have employed "more positive behavior interventions" as long
as it made a "good faith effort" to help the student achieve the educational
goals outlined in his IEP. Although an IEP team must "consider" the results
of independent educational evaluations, not all such recommendations
need be adopted. The IEP team adopted the majority of the independent
evaluator’s recommendations, but maintained use of the calming room
because of the belief that it was important for the safety and development of
the student. M.M. v. District 1 Lancaster County School 702 F.3d 479, 60
IDELR 92 (United States Court of Appeals, 8th Circuit (2012)
Lesson Learned
The IEP Team must consider any input provided by the parent including
any Independent Educational Evaluation Reports. When considering IEEs it
35
may be very important to have a discussion with the evaluator to determine
how they reached their recommendations.
Remember also, the Team must provide the parent with written notice if it
is proposing or refusing to incorporate the IEE’s recommendations in the
student’s IEP.
D.
The parents of a student with autism alleged that the behavioral component
of their student’s IEP was not appropriate since his self-injurious behavior
increased and he started having "rage incidents". Therefore, they contend
that his IEP failed to provide him an educational benefit because it did not
prevent his behaviors from substantially interfering with his learning.
Although the Court noted that there was a factual dispute on this point this
is not the standard by which a Court evaluates compliance with the IDEA.
In concluding that the IEP did provide the student a FAPE, the Court stated
“The IDEA does not require a school district to eliminate interfering
behaviors. It requires only that the school district "consider the use" of
positive behavioral interventions and supports to address the behavior.” The
evidentiary record supported that the school met this responsibility by
having a behavioral component to the IEP. J.W. v. Unified School District
of Johnson County 58 IDELR 124 (United States District Court, Kansas
(2012)).
E.
A bus suspension must be treated as a disciplinary removal and all of the
IDEA's discipline procedures applicable to children with disabilities apply
if transportation is listed on the IEP. If a student is suspended from
transportation included in the IEP for more than 10 consecutive school days
that suspension constitutes a change of placement. Such a change of
placement would trigger the requirement for a manifestation determination.
OSEP indicated the fact that a family member voluntarily transports the
student to and from school does not change the analysis. Specifically
OSEP stated “Generally, a school district is not relieved of its obligation to
provide special education and related services at no cost to the parent and
consistent with the discipline procedures just because the child's parent
voluntarily chooses to provide transportation to his or her child during a
period of suspension from that related service.” Letter to Sarzynski 112
LRP 35343 (United States Department of Education, Office of Special
Education (2012)).
Lesson Learned
36
If transportation is listed in the student’s IEP as a related service, any
suspension from the bus will be treated as a disciplinary suspension unless
the school offers an alternative transportation plan. If the parent truly
volunteers to transport their student, the school should consider offering the
parent mileage reimbursement since all services in the IEP must be
provided at no cost to the parent.
F.
OSEP issued a guidance letter regarding a hearing officer’s authority to
determine whether a student with a disability actually violated the conduct
code of the school. OSEP opined:
In the context of disciplinary hearings, OSEP has previously stated that "a
hearing officer must have the ability to conduct hearings and render and
write decisions in accordance with appropriate, standard legal practice and
exercise his or her judgment in the context of all the factors involved in an
individual case." 71 FR 46540, 46724 (August 14, 2006). Because the
hearing officer's authority includes a determination regarding 34 CFR
Section 300.530 and that provision includes references to removal from the
current placement of a child with a disability who violates a code of student
conduct, there may be instances where a hearing officer, in his discretion,
would address whether such a violation has occurred. The IDEA and its
implementing regulations neither preclude nor require that a hearing officer
determine whether a certain action by a student with a disability amounts to
a violation of the school district's Student Code of Conduct. Letter to
Ramirez 60 IDELR 230 (United States Department of Education, Office of
Special Education Programs (2012)). Note: This guidance letter is in
conflict with the holding of at least one recent court decision. See Danny K.
v. Hawaii Department of Education 57 IDELR 185 (United States District
Court, Hawaii (2011)).
Lesson Learned
All students, including all students with disabilities, must be afforded a
disciplinary hearing if the school is considering suspending the student for
a violation of the student conduct code. The manifestation team should
verify that the student has been afforded this process.
G.
An 11 year old student with intellectual disabilities engaged in the
following series of events based on evidentiary findings by the Court: (a)
the student began throwing pebbles, then rocks, while on the playground,
which his aide told him to put down; (b) when told by his physical
education teacher to stop throwing the rocks, the student became agitated
37
and defiant; (c) a teacher's assistant took the rock from the student, at
which time he became upset and began yelling and running; (d) the school
security guard testified that when she told the student he could not throw
rocks he became very agitated; (e) when another security guard approached
the student, he assumed a boxing stance and began running around in an
attempt to make physical contact; (f) one security guard held the student's
right arm down at his side by holding his right wrist with both of her hands
while the other security guard held the student's left arm down; (g) the
student screamed and tried to run, pulling the guards along with him; (h)
when the guards let go of the student, he tried to swing at bystanders so
they again held his arms; (i) the guards sat the student down in a sandy area
by dropping down in a seated position while holding him; (j) the student
continued thrashing around as testified to by the principal and the student's
teacher; (k) the student tried to bang his head and continued thrashing when
the school’s resource police officer arrived and handcuffed the student; (l)
the parent was contacted, came to school and took the student home for the
remainder of the day.
The parent then sued the school district, school staff and the police
department for unlawful detention, assault and battery, intentional and
negligent infliction of emotional distress, and a violation of the student’s
civil rights under the Constitution. The Court affirmed the granting of a
Motion for Summary Judgment in favor of all of the defendants finding that
“the minimal amount of force that was used to seize [the student] for his
safety and the safety of those around him was, as a matter of law,
reasonable under the circumstances”. E.C. v. County of Suffolk et.al. 60
IDELR 242 (United States Court of Appeals, 2nd Circuit (2013)). Note: This
is an unpublished decision.
Lesson Learned
Should there be a disciplinary incident that resulted in a student needing to
be restrained and/or the police called, staff involved should document the
events independently while their recollection is current. Such notes can be
very important and relevant should there be subsequent legal proceedings
initiated. Of course, the parents should be immediately notified. It would be
recommended that the school appoint one person to be the main contact
with the authorities and the family.
IX.
Harassment/Bullying Issues
38
A.
The Court refused to grant the school district’s Motion for Summary
Judgment regarding the alleged denial of FAPE based on bullying. A
student with a specific learning disability alleged that she was bullied in
school. The parents met with the principal to discuss their concern about
bullying but were told to leave the principal’s office. Afterwards, the
parents brought up the issue at the IEP meeting but again were told by the
principal that it was not an appropriate topic for the IEP Team.
Both the hearing officer and the state review officer concluded that the
student’s IEP was reasonably calculated to enable the student to receive
educational benefits.
The Court found that neither the hearing officer nor state review officer
properly considered the relationship of the bullying allegation to the
provision of FAPE. The Court then stated:
The rule to be applied is as follows: When responding to bullying
incidents, which may affect the opportunities of a special education
student to obtain an appropriate education, a school must take
prompt and appropriate action. It must investigate if the harassment
is reported to have occurred. If harassment is found to have
occurred, the school must take appropriate steps to prevent it in the
future. These duties of a school exist even if the misconduct is
covered by its anti-bullying policy, and regardless of whether the
student has complained, asked the school to take action, or identified
the harassment as a form of discrimination.
It is not necessary to show that the bullying prevented all
opportunity for an appropriate education, but only that it is likely to
affect the opportunity of the student for an appropriate education.
The bullying need not be a reaction to or related to a particular
disability.
T.K. v. New York City Department of Education 56 IDELR 228 (United
States District Court, Eastern District, New York (2011)). In a subsequent
order, the Court remanded the case back to the hearing officer preferably
the one who heard the case in the first instance. The hearing officer was
ordered to review evidence of bullying and make a determination of
whether harassment deprived the student of her educational benefit and any
other relevant issues bearing on this issue. This determination shall be made
utilizing the articulated test in the Court’s previous decision. T.K. v. New
York City Department of Education 112 LRP 8001 (United States District
Court, Eastern District, New York (2011)).
39
Lesson Learned
Ensure that your staffs are aware of their responsibilities to report bullying
incidents under your local policy. If a student with a disability is either the
perpetrator or victim of bullying, the Team should consider addressing the
behavior in the IEP in terms of interventions/supports/supervision.
B.
Mississippi Law on Bullying (Senate Bill 2015)
As used in this act, "bullying or harassing behavior" is any pattern of
gestures or written, electronic or verbal communications, or any physical
act or any threatening communication, or any act reasonably perceived as
being motivated by any actual or perceived differentiating characteristic,
that takes place on school property, at any school -sponsored function, or
on a school bus, and that: (a) Places a student or school employee in actual
and reasonable fear of harm to his or her person or damage to his or her
property; or (b) Creates or is certain to create a hostile environment by
substantially interfering with or impairing a student's educational
performance, opportunities or benefits. For purposes of this section, "hostile
environment" means that the victim subjectively views the conduct as
bullying or harassing behavior and the conduct is objectively severe or
pervasive enough that a reasonable person would agree that it is bullying or
harassing behavior.
C.
The parents of a student with a disability filed several claims related to the
alleged bullying of their son while he was in fifth grade seeking both
compensatory and punitive damages and unspecified injunctive relief. They
sued the Board, the administration and some staff in their individual and
official capacities.
The parents concede that they failed to exhaust administrative due process
hearing remedies under the IDEA, but insist that they are excused from the
exhaustion requirement because it would have been futile. They argued that
the "IDEA provides no remedy for special education students who are
victims of violations of school disciplinary rules," and the administrative
process "does not have the authority to grant the Plaintiff money damages."
The Court disagreed and dismissed the claims under the IDEA and Section
504 for failure to first file a due process hearing complaint . In doing so, the
Court stated “The purpose of these procedural mechanisms is to preserve
the right to a free appropriate public education, not to provide a forum for
tort-like claims of educational malpractice. ... [T]he [Supreme] Court has
never approved an award of compensatory or punitive damages under the
40
IDEA for a violation of its requirements.” Wright v. Carroll County Board
of Education 59 IDELR 5 (United States District Court, Maryland (2012)).
X.
Liability Issues
A.
The parent of a student with an intellectual disability, speech impairment
and hearing impairment claimed that the student was involved with several
incidents of sexual conduct by male students without an adequate response
by the school district. The parent filed a lawsuit under Section 504 alleging
“gross mismanagement” of the student’s IEP, the Americans With
Disabilities Act, and Title IX. The District Court dismissed the lawsuit.
The Court of Appeals, in reversing the dismissal of the Section 504 claim,
held that the gross misjudgment standard unlike the deliberate indifference
standard, applies to a school district’s refusal to make reasonable
accommodations to the student’s IEP. The Court observed that however
appropriate the school’s initial response was, it had an ongoing
responsibility to “calibrate” the student’s IEP to effectively address the
need to keep the student separated from males and have her closely
supervised. Based on the pleadings before the Court, the parent stated a
plausible claim that the school district committed gross misjudgment in
failing to implement alternative strategies when subsequent “sexual abuse”
took place. Stewart v. Waco Independent School District 711 F.3d 513, 60
IDELR 241 (United States Court of Appeals, 5th Circuit (2013)).
B.
The parent of a student with Type 1 diabetes and a peanut allergy had made
a series of requests from the school to accommodate her daughter including
the hiring of a full-time nurse to assist with diabetes management, making
the classroom a peanut free zone and conducting the necessary blood tests
required every day in the classroom rather than the school’s clinic.
The parent filed a complaint with the OCR alleging the school was not
responding to her requests for accommodations. Two days later the
principal expressed her concern and frustration with the parent on a voice
mail directed to the head nurse. The voice mail was accidently left on the
parent’s voice mail instead of the nurse’s. Tensions between the family and
school continued.
The principal sent an email to the Superintendent and other staff that the
student’s teacher was having an “anxiety attack from the constant
harassment” by the parent and that the student’s glucose levels greatly
fluctuated due to the parent “not monitoring [the student] at home”. The
principal, after receiving responses to her email, filed an abuse report with
the Department of Childrens’ Services. The parent then filed a lawsuit
41
alleging that the abuse reports were made in retaliation for her attempts to
get the necessary accommodations for her student.
The Court of Appeals held that the District Court erred in dismissing the
lawsuit. The evidence provided could permit a reasonable jury to find that
the abuse reports were not made in good faith but were motivated by a
desire to retaliate. The matter was remanded back to the District Court for a
trial. A.C. v. Shelby County Board of Education 711 F.3d 687, 60 IDELR
271 (United States Court of Appeals, 6th Circuit (2013)).
Lesson Learned
Don’t take matters personally!! No matter how difficult a staff member or a
parent is, take a deep breath and make sure that you don’t engage in what
could be perceived as retaliation.
C.
A student was physically attacked by another student in her class who had a
disability and had a history of emotional outbursts and aggressive
behaviors. He grabbed the student victim’s head and rubbed Clorox
cleaning wipes in her eyes. The student had to receive medical treatment for
the injury to her eyes.
The parent of the student victim brought a lawsuit against the school
district, the Superintendent, the Principal and the special education teacher
alleging a violation of her student’s Constitutional due process rights (A
Section 1983 lawsuit). It was alleged that the school failed to remove the
student with a disability from the classroom when the school became aware
of his violent propensities.
The Court of Appeals affirmed the dismissal of the lawsuit. The Court
concluded that there was no evidence to suggest that the behavior of the
student with a disability was ever focused on the student victim such that
she would have been a “known victim” of an unprecedented assault. Dixon
v. Alcorn County School District 60 IDELR 61 (United States Court of
Appeals, 5th Circuit (2012)). Note: This is an unpublished decision.
D.
An 18 year old student with a disability was sexually assaulted by another
student on school grounds. The parent initiated a lawsuit under Section
1983 alleging that the school district and staff violated her student’s
Constitutional due process rights.
The Court of Appeals affirmed the dismissal of the lawsuit finding that a
parent cannot establish liability under a “state created danger” theory. As a
general rule, school districts are not responsible under Section 1983 for
harm caused by third parties. Colomo v. San Angelo Independent School
42
District 60 IDELR 95 (United States Court of Appeals, 5th Circuit (2012))
Note: This is an unpublished decision.
XI.
Due Process Hearing Issues
A.
The parent of a student with a disability who turned 18 years of age filed a
due process hearing complaint alleging that the student should have
received extended school year services during the summer when the student
had already turned 18. The Court, in reversing the hearing officer and state
review officer, held that the due process complaint should be dismissed.
The Court stated that under the IDEA and state law all rights transfer to the
adult student once they reach the age of majority (unless a Court has
determined that the adult student is legally incompetent). There is no
question that the parent had no rights once her daughter reached the age of
majority. Ravenna School District Board of Education v. Williams 59
IDELR 158 (United States District Court, Northern District, Ohio (2012)).
Lesson Learned
When working with an adult student who has not been placed under legal
guardianship by a Court, all parental rights transfer to the adult student. The
parents still maintain the right to receive all required notices. The transfer
of rights must be addressed in the IEP at least one year beforehand.
B.
The hearing officer concluded that the parent did not meet her burden of
showing that the contested IEPs denied the student a FAPE. The hearing
officer stated, however, that the student had significant emotional problems
that interfered with his attendance and participation in school, and that the
IEP failed to address his truancy and school avoidance. The hearing officer
further did note that the parent had not addressed this issue in her due
process complaint or in the evidence that she had presented. The hearing
officer noted that the parent had not addressed this issue in her due process
complaint or in the evidence that she had presented. Nevertheless, the
hearing officer ordered that the IEP be revised to include weekly family
counseling and provide him with a "trained mentor, social worker, or
similar service provider" to wake, dress, feed and take the child to and from
school.
The Court held by "injecting" an issue that was not raised in the due
process complaint the hearing officer erred since a hearing is limited to the
issues raised in the due process complaint. Even if the issue was raised in
43
the complaint the hearing officer here had no evidentiary basis to make the
determination that a service provider should be appointed to supervise the
student on a daily basis. Therefore, the hearing decision was reversed.
District of Columbia v. Pearson 60 IDELR 194 (United States District
Court, District of Columbia (2013)).
C.
XII.
Although the regulation regarding resolution sessions (34 CFR 300.510)
does not include a requirement that public agencies use other methods to
ensure parent participation in a resolution meeting, the U.S. Department of
Education has stated that if the parent informs the school in advance of the
meeting that circumstances prevent the parent from attending the resolution
meeting in person, it would be appropriate for the school to offer to use
alternative means to ensure parent participation, such as video conferences
or conference telephone calls, subject to the parent's agreement. Letter to
Eig 59 IDELR 81 (United States Department of Education, Office of
Special Education Programs (2012)).
Miscellaneous Issues
A.
The parents of a special needs student enrolled in the County Office of
Education’s (LEA) program for the Deaf and Hard of Hearing submitted a
request for a compliance complaint investigation under the State’s
administrative complaint procedures to the State Education Agency (SEA)
alleging that the LEA failed to provide the student with directions for state
testing in American Sign Language. The SEA thereafter issued a
compliance complaint report which found the LEA out of compliance with
state and the IDEA.
The LEA appealed the SEA’s determination to Court. The Court, in
dismissing the lawsuit, held that the Ninth Circuit has made clear that while
parents and children with disabilities may have a private right of action to
challenge the IDEA's procedural protections, this right does not extend to
LEAs. Therefore, the Court concluded that the LEA lacked standing to
bring this claim.
In addition, the Court noted that the LEA had not met its burden in
demonstrating that it could not have raised its claims in a due process
hearing or that to do so would be futile. The Court therefore concluded that,
even if the LEA had standing to pursue its claims, it still had not met its
burden of demonstrating why it should be relieved of its obligation to
exhaust its administrative remedies. Yolo County Office of Education v.
44
State of California Department of Education 59 IDELR 123 (United States
District Court, Eastern District, California (2012)).
B.
The parents withdrew consent for their student to receive IDEA services,
but requested that the school provide him with accommodations under
Section 504 of the Rehabilitation Act of 1973. The school informed the
parent that it would not provide Section 504 accommodations because of
the withdrawal of consent for IDEA services.
The Court held that the parent’s revocation of consent for services under
IDEA was tantamount to revocation of consent for services under Section
504 and the ADA. The Court based its ruling on the United States Office
for Civil Rights (OCR) letter that stated "by rejecting the services
developed under the IDEA, the parent would essentially be rejecting what
would be offered under Section 504”. See Letter to McKethan, 25 IDELR
295 (Office for Civil Rights (1996)). The parents offered no judicial or
administrative decision that called the OCR’s position into doubt.
Therefore, the parent could not compel the district to develop a plan under
Section 504 for their student .Lamkin v. Lone Jack C-6 School District 58
IDELR 197 (United States District Court, Western District, Missouri
(2012)).
C.
The parents of a student with a disability revoked consent for continued IEP
services under the IDEA. After the revocation was received, the school held
a Section 504 meeting where it proposed a Section 504 plan that was
substantively equivalent to the previously proposed IEP.
The Court held that revocation of consent under the IDEA does not impact
the school’s obligation under Section 504. Therefore, the school was
required to convene a Section 504 meeting and develop a 504 plan after the
parents revoked consent for IDEA services. Although the Court upheld the
proposed Section 504 plan, it stated that the school has a “continuing
obligation under Section 504 and the ADA to protect [the student] from
discrimination while she remains a qualifying student with a disability, and
therefore must continue to offer any accommodations or services required
to ensure that [the student] is provided an opportunity for a FAPE under
Section 504. “ Kimble v. Douglas County School District 60 IDELR 221
(United States District Court, Colorado (2013)).
Lesson Learned
Since the Courts are not in agreement regarding Section 504 protections for
a student whose parents have revoked consent for IEP services, the safest
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approach to take is to include in the schools written notice in response to
the revocation that the student is protected by Section 504. Invite the
parent, if they choose, to contact the school to discuss what steps the school
will take to take to develop a Section 504 plan. Of course, document the
parent’s response.
D.
The IDEA’s provision that courts grant “appropriate relief” does not justify
the district court’s decision to award $1 in nominal money damages to the
parent of a former student with a disability who brought a retaliation claim
against the school district. Nominal damages are not an available remedy
under the IDEA, as the plain language of the IDEA does not indicate the
availability of monetary damages. The Court noted “Without some
indication that Congress intended ‘to create not just a private right but also
a private remedy…a cause of action does not exist and courts may not
create one, no matter how desirable that might be as a policy matter, or how
compatible with the statute….” C.O v. Portland Public Schools 679 F.3d
1162, 58 IDELR 272 (United States Court of Appeals, 9th Circuit (2012)).
E.
A student with a disability was placed by his parents in a private religious
school. The parents contended that Section 504 of the Rehabilitation Act of
1973 compelled the public school district to provide the student educational
services related to his disabilities even though he was enrolled exclusively
in a private religious school. They also claimed that the school district’s
requirement that the student attend a public school in order to receive
Section 504 services is unconstitutionally burdensome on their right to
make educational decisions.
The Court of Appeals affirmed the granting of a Summary Judgment for the
school district. The Court stated that it did not read Section 504 to apply an
affirmative obligation on school districts to provide services to private
school students. The administrative guidance, statutory purpose, case law,
and policy considerations compel the holding that the student is not entitled
to Section 504 services if he remains enrolled at a private institution. D.L.
v. Baltimore City Board of School Commissioners 60 IDELR 121 (United
States Court of Appeals, 4th Circuit (2013)).
F.
The United States Department of Education issued a guidance letter
regarding a non-custodial parent’s access to the education records of their
child. A school is required to provide custodial and noncustodial parents
alike with full rights under FERPA unless the school has been provided
with evidence that there is a court order, State statute, or other legally
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binding document relating to such matters as divorce, separation, or
custody that specifically revoke these rights.
The Department noted that this right of access includes the right to inspect
and review education records permitting a parent to be informed of his or
her child's progress in school and aware of all records maintained by the
school concerning the child. However, the Department opined that the
school may place a limit on the non-custodial parent’s access when it stated
“while a student's address, telephone listing, and related information are
technically part of the student's education records, this is not information
created or developed by the school that pertains to the student's life as a
student, as are academic, disciplinary, or health data. Therefore, in a
situation where a school has evidence that a student, custodial parent, or
other individual may be in physical danger from a noncustodial parent, this
office would not require the school to provide the noncustodial parent with
the address, telephone listing, or related information regarding the student,
parent, or other individual.” Letter to Lianides 113 LRP 7159 (United
States Department of Education, Family Policy Compliance Office (2012)).
Note: This outline is intended to provide workshop participants with a summary of
selected Federal statutory/regulatory provisions and selected judicial interpretations
of the law. The presenter is not, in using this outline, rendering legal advice to the
participants. The services of a licensed attorney should be sought in responding to
individual student situations.
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