SPED Law News

June 2010

2010-06-01T20:12:00.000-07:00

Clarification: "Section 504 only" students and discipline for use or possession of drugs or alcohol

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Section 504 includes the following provision:

"For purposes of programs and activities providing educational services, local educational agencies may take disciplinary action pertaining to the use or possession of illegal drugs or alcohol against any student who is an individual with a disability and who currently is engaging in the illegal use of drugs or in the use of alcohol to the same extent that such disciplinary action is taken against students who are not individuals with disabilities. Furthermore, the due process procedures at section 104.36 of title 34, Code of Federal Regulations (or any corresponding similar regulation or ruling) shall not apply to such disciplinary actions."

What does this mean?

A "504 only" student may be disciplined without regard to Section 504 protections (no manifestation determination meeting required) in the following circumstance:

(1) The student engages in the use or possession of illegal drugs or alchohol in violation of a school policy;

(2) The student is "currently engaging in the illegal use of drugs or in the use of alcohol"; and

(3) The discipline is the same type of discipline that would be taken against students who are not disabled.

What does it mean to "currently engage" in the illegal use of drugs or use of alcohol?

Section 504 does not say, but OCR has stated that the use has to be recently enough to justify a reasonable belief that the use is an ongoing problem. Evidence of current use may be a student's confession, a drug-alcohol evaluation, a juvenile report. Districts should be cautious in relying on hearsay statements by students or staff to establish "current use".

May 2010

2010-05-01T20:04:00.000-07:00

N.D. v. State of Hawaii Department of Education: 54 IDELR 111 (9th Cir. April 5, 2010): Furlough Days

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The story: The State of Hawaii is one large school district. Just as the State of Oregon implemented "furloughs" for state workers this year, Hawaii did the same for its teachers, reducing the school year by 17 days. Several parents of students with disabilities argued that the reduction resulted in a change in placement and that the students had the right to "stay put" pending the outcome of their due process hearing on the matter. If the parents were right, the State would not be permitted to implement the furlough days with regard to these children.

The ruling: The US District Court and Ninth Circuit Court of Appeals disagreed.

Both Courts ruled that the furlough days were not a change in placement triggering "stay put" because the purpose of the "stay put" provision was to prevent exclusion of students with disabilities. "...Congress did not intend for the IDEA to apply to system wide administrative decisions. Hawaii's furloughs affect all public schools and all students, disabled and non-disabled alike. An across the board reduction of school days such as the one here does not conflict with Congress's intent of protecting disabled children from being singled out." To rule otherwise would be "to give parents of disabled children veto power over a state's decisions regarding the management of its schools. The IDEA did not intent to strip administrative powers away from local school boards and give them to parents of individual children, and we do not read it as doing so."

The court also found that the four day week resulting from the furlough days did not result in a change in placement because the five day week had been reduced to a four day week. The court disagreed that the IEP assumed a five day week across the board, noting that state and federal holidays resulted in some four day weeks and the furlough days were no different.

Last, the court acknowledged that the parents could, in some cases, bring a Baker School District-type claim for material failure to implement the IEP, but this type of claim did not trigger the "stay put" provision in the IDEA.

The implications: Finally. Schools in Oregon and I'm sure elsewhere have struggled with this issue, not just with regard to furlough days or shortened school calendars, but also with school strikes, weather-related closures, and other district-wide or school-wide closures. What this means is that school districts do not need to provide continuing services to students with disabilities when the whole district is closed. However, there may be a need, on a case-by-case basis, to consider whether the closure results in a "material failure to implement the IEP" that would require compensatory education services. In some cases, school districts may want to provide some interim services to mitigate potential claims at the back end. But the Court suggests here that they are not compelled to do so. And the occasional Friday Furlough is not likely to meet the "material failure to implement" test.

March 2010 - Predetermination

2010-03-01T20:03:00.000-08:00

H.B. v. Las Virgenes Unified School District, 52 IDELR 163 (CD Cal, 2008)(on remand), affirmed, 110 LRP 15671 (9th Cir, March 11, 2010)(unpublished).

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The story: It appears that the school district entered into a settlement agreement with the family that placed the student at a private school for a period of time with the intent of bringing him back to a public placement in the district. At the IEP/placement meeting held at the end of that time period, district staff assumed that the student would be returning to the district under the terms of the settlement agreement. Although the parents wanted the student to stay at the private school, that option was not discussed at the meeting. The district representative at the meeting began the discussion about placement by stating the need to talk about a transition from the private school to a public program.

The court found the district had "predetermined" the student's placement because it found no evidence that the team discussed "the comparative strengths and weaknesses" of the private program and the public program and did not discuss whether the private program would be capable of implementing the student's IEP. The court found that the district's determination of a public placement did not evidence "the sort of open-mindedness that is necessary to comply with the IDEA" because the district was fully aware of the parents' wishes and did not address them in any meaningful way.

The court did not find fault with the IEP itself or that the proposed placement was inappropriate, but only with the procedure defect that did not allow for meaningful parent participation. The court did not address the impact of the settlement agreement.

Implications for schools:

It is incredibly difficult to walk the fine line between "offering a proposal" and "predetermining placement", particularly in contentious situations where "meaningful participation" by anyone is difficult and consensus most likely impossible.

The court suggests that it would not have found a procedural violation if the team had clearly discussed and documented the pros and cons of both placement options and only discussed the need for a "transition plan" after determining that the placement would be changed.

This case also reinforces the practice of considering not only the placement proposed by the district, but also any placements supported by the parents, even if the parent requested placements are more restrictive than the district's proposed placement.

Given that the court had no problem with the IEP itself, this case reinforces the Rowley position that the procedures can be every bit as important as the actual services provided. A good reminder, if a difficult one to implement.

January/February 2010

2010-02-01T20:02:00.000-08:00

Drobnicki v. Poway Unified School District, 109 LRP 73255 (9th Cir., November 17, 2009 (unpublished)

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The story: Of course, there are always two sides to every story. The student here, Daniel, was found eligible for special education in middle school due to a diagnosis of ADD/ADHD. At the beginning of his sophomore year in high school, the parent met with the special education case manager to review a draft IEP. A general education ceramics teacher was present for a short time during this meeting, and no decisions were made.

The district sent the parent a notice of a second IEP meeting a few weeks later. The parent emailed the special education case manager the next day to say she was "not sure" they could attend because of a scheduled due process hearing (unrelated to the current IEP). In fact, the due process hearing was not scheduled on the day of the proposed meeting, but was scheduled on the days before and after the proposed meeting. Just before the IEP meeting, the IEP case manager phoned the parent and learned the parent would not be attending. While on the phone, the parent sent the IEP case manager an email saying that she had just returned from outpatient surgery and could not come to the meeting. Staff phoned the parent again and offered that she participate by speaker phone. The parent declined - she stated she thought is was inappropriate to hold the IEP meeting in the middle of the due process hearing.

The district proceeded with the IEP meeting without the parent, and forwarded a copy of the completed IEP to the parents. The parents objected to the IEP and the district filed a due process hearing to show that the IEP offered FAPE to the student. The ALJ found the IEP provided FAPE and found no procedural violation related to holding the meeting without the parent. The US District Court agreed, finding that the district took sufficient steps to ensure that one or both parents had the opportunity to participate in the IEP meeting - the father was available, having cleared his calendar for the hearing, and the mother chose not to participate by speaker phone. And, the court said, even if it was a procedural error, it did not result in a loss of educational opportunity or seriously infringe on the parents' opportunity to participate because the district held another IEP meeting about six weeks later with the parents to address the parents' concerns.

The 9th Circuit disagreed, finding that the district violated it's "affirmative duty" to schedule the IEP meeting at "mutually agreed on time and place." "Before it can hold an IEP meeting without a child's parents, the school district must document phone calls, correspondence, and visits to the parents demonstrating attempts to reach a mutually agreed upon time and place", citing Shapiro v. Paradise Valley Unified School District (9th Cir. 2003). The district did not contact the parents first to find an agreed upon date, and when the parent indicated that the proposed meeting date didn't look good, the district did not offer any alternative dates, and did not engage in any correspondence, phone calls or visits to establish a meeting date. Whether the parents had an actual conflict or not didn't matter, as a school district "cannot abdicate its affirmative duties under the IDEA." (citing N.B. v. Hellgate Elementary School (9th Cir., 2008).

Implications for schools:

-If possible, contact parents first before sending out a meeting notice.

- If not possible or feasible to contact parents first, confirm with the parents that the proposed meeting time is acceptable.

-Document all phone calls, emails, correspondence, and hallway conversations with the parents related to scheduling the IEP meeting.

-If the school does not have sufficient documentation of efforts to schedule a "mutually agreed on time and place", don't hold the IEP meeting without the parents.

December 2009

2009-12-01T19:42:00.000-08:00

Case of the Month #1:

Forest Grove School District v. T.A. (remand decision from US Supreme Court)

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We followed this case up to the US Supreme Court, and have been waiting for the US District Court of Oregon's decision on remand. On December 8, 2009, the District Court again ruled for Forest Grove School District, finding that the equities (as clarified by the Ninth Circuit and affirmed by the US Supreme Court) do not compel tuition reimbursement in this situation. Under general principals of equity, the court found the following factors relevant: notice to the school district; the existence of other, more suitable placements; the effort expended by the parents in securing alternative placements; the general cooperative or uncooperative position of the school district; and the reasons that the parents sent the student to a residential placement.

After weighing several of these factors, the court found the decisive factor to be that the parents enrolled T.A. at Mount Bachelor Academy "not because of any disability recognized by the IDEA but because of his drug abuse and behavioral problems....T.A.'s parents decided to send T.A. to MBA after he admitted to using marijuana on a fairly regular basis, was occasionally so drugged that he could not get out of bed or speak, made over $1,000 worth of telephone calls to sex talk lines, scanned Internet pornography sites, and ran away from home."

In response to the parent's argument that these behaviors were actually linked to his ADHD, the court stated that "the District's responsibility under the IDEA is to remedy the learning related symptoms of a disability, not to treat the underlying disability or to treat other non-learning related symptoms. . . .That responsibility rests with the parents and medical professionals." As an aside, the judge noted that the parents chose "an extraordinarily expensive option" among all possible choices - the program cost $5,200 per month.

So, what does this mean for schools? The lessons of Forest Grove are still the same: have good, effective "child find" systems in your high schools; have good systems for flagging students who are failing classes, not attending school, or getting suspended repeatedly for disciplinary issues. That said, schools are in a better position now if parents are pursuing a residential (or private school) placement for primarily noneducational reasons. This is as it should be.

Recent information on Mt. Bachelor Academy.

12/15/09 article from The Oregonian on outcome and parents' intent to appeal decision.

Case of the Month #2: Ashland School District v. R.J. (9th Cir., December 7, 2009)

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R.J. had ADHD and was eligible for special education; her IEP addressed her problems with distractibility, task completion and organization and included counseling as a related service. In 9th grade, she began showing signs of depression and engaging in risky sexual behavior and some self-harming behaviors. She was angry about her parents' divorce and about an ex-boyfriend. In the fall of 10th grade, the student was getting A's and B's on assignments that she turned in and was not getting into trouble during the school day, but was sneaking out at night and making poor choices about her behavior outside of school. In mid-December, her parent placed her at Mt. Bachelor Academy. She did not do well there, and was expelled for sexual activity. Her parents then moved her to a more clinical, all girls residential program in Arizona. Meanwhile, they partially prevailed in a due process hearing, getting reimbursement for the Arizona program but not Mt. Bachelor.

On appeal, the US District Court of Oregon reversed the ALJ's decision, finding that Ashland School District had provided an appropriate program, and that residential placement was not necessary to meet the student's educational needs. "Rather, her placement stemmed from issues apart from the learning process, which manifested themselves away from the school grounds."

The Ninth Circuit agreed, finding that a residential placement is only appropriate if it is "necessary to provide special education and related services" to the student. "Whether a residential placement is necessary to provide special education and related services -- that is, whether the 'student is incapable of deriving educational benefit outside of a residential placement' -- is a question of fact, which we review for clear error." The Court agreed that the student did not need a residential placement for any educational reason - although she had difficulty turning assignments in on time, she earned good grades when she did complete her work. It was her risky behaviors outside of school that prompted her parents to initiate the residential placement.

Case of the Month#3: Ashland School District v. E.H.

(9th Circuit, December 7, 2009)

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E.H. became eligible for special education in 5th grade - she had migraines, anxiety and depression. She attended an alternative school in 8th grade. During the summer before high school, she was hospitalized for two suicide attempts and her treating physicians and therapists recommended residential treatment to address her persistent emotional and medical problems. After the alternative school declined her enrollment, she was placed full time at the district's high school. In November, the district agreed to provide home instruction on a temporary basis, and E.H. was again hospitalized in December for suicidal tendencies and threatening to injure family members.

In January, the parents unilaterally placed E.H. in Utah's Youth Care program. Seven months later, the parents wrote to the school district expressing dissatisfaction with the school district's education and requesting reimbursement for residential placement. The district declined; the administrative law judge ultimately ruled for the parents, finding that the district's IEPs did not provide a FAPE to the student, and that Youth Care was appropriate. The ALJ found that E.H.'s medical and educational problems were intertwined and the lack of notice was justification for reducing but not declining reimbursement.

On appeal, the US District Court of Oregon disagreed, concluding that the placement "was motivated primarily by [the parents'] worries about E.H.'s medical condition", the notice was insufficient, the parents had not objected to any of the previous IEPs, and they participated in the December 2005 IEP meeting (after their unilateral placement) "not to help ASD prepare to provide their child with FAPE, but merely as a prelude to seeking reimbursement."

The 9th Circuit agreed with the lower court's decision, concluding that it was not inappropriate for the lower court to consider the high cost of residential placement, especially since must of the cost is directed to medical or psychological care, not education. The 9th Circuit found that lower court did not inappropriately consider the parents' lack of notice, and agreed that the district had given the parents adequate Notice of Procedural Safeguards as required by the IDEA, which included the notice requirement. The district had no obligation to remind the parents of this notice once it knew they were considering a residential placement.

What do the two Ashland cases mean for schools? Residential placement cases are always very fact-specific and the outcomes vary widely across jurisdictions. These cases narrow the circumstances in which reimbursement for residential placement will be required. However, in both cases, the ALJs found several problems with the IEPs that swayed the initial decisions in favor of the parents. Although not discussed by the higher courts, in Oregon these factors could still be significant at the ALJ level so I will state them again. Be sure you can connect the dots between the assessment, present level statement, goal, and IEP progress reports. The ALJ's decision is very important because it affects "stay put" for the remainder of the litigation process.

November 2009

2009-11-01T19:41:00.000-08:00

Case of the Month: Ellensberg v. New Mexico Military Institute

Eligibility under IDEA not the same as under 504

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This interesting case from the 10th Circuit holds that a student who is eligible under the IDEA does not necessarily have a disability that "substantially limits a major life activity" as required under Section 504. While there is a "likelihood of overlap", "disabilities that merit an IDEA individualized education program range from the minimal to the serious", and may not meet the criteria. Here, a student with Oppositional Defiant Disorder filed suit under Section 504 against a state school for refusing her admission, but did not establish that she had a disability under Section 504 merely by stating that she had a disability under the IDEA. The lower court was correct in ruling for the school on a motion for summary judgment.

So, what does this mean for schools? This case reinforces the notion that there are no "automatic ins" when it comes to 504 eligibility determinations. School teams need to make individual determinations about applying the 504 criteria to students. In the recent Americans with Disabilities Act Amendments, Congress cautioned against prolonged consideration of whether a person had a disability or not stating, basically, that it was not that difficult of a question. Still, teams should not make assumptions. For example, a student who is terminated from IDEA eligibility because that student no longer needs specially designed instruction may or may not have a current disability under Section 504. The same is true for parents who revoke consent for special education services under the IDEA.

October 2009

2009-10-01T19:41:00.000-07:00

Issue of the Month: Manifestation Determination, three scenarios

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1. Let's say you have a student on an IEP who misbehaves and is referred for expulsion. The district holds an expulsion hearing before conducting any manifestation determination but does not expel the student or even suspend the student for more than ten consecutive school days. Did the district violate the requirement to hold a manifestation determination review before a disciplinary change in placement? OSEP says no, the requirement is to hold the review before the removal, not before the expulsion hearing to consider the removal. Letter to Annon., (OSEP, March 18 2005).

2. Same student, but this time the district holds the manifestation determination review within the ten school day timeline, determines that the misconduct was not a manifestation of the student's disability and, following an expulsion hearing, expels the student and moves the student to an alternative school for the duration of the expulsion period. About a month later, the parent gets a private evaluation which diagnoses a previously undiagnosed (and unknown to the district) condition which, if the district had known at the time of the manifestation determination review, might well have changed the outcome of that meeting. Should the district hold another manifestation determination review to consider the new information? OSEP says no, "it is not recommended that the IEP team reconvene to re-conduct the manifestation determination. Any new information, could, however, be used as a basis for an IEP meeting to reexamine the student's program and placement." Letter to Brune, (OSEP, March 17, 2003). In other words, the district still has a responsibility to provide an appropriate education, and should address the newly identified needs in the student's current IEP going forward.

3. Now we have a student who is identified as having a specific learning disability for IDEA purposes, but also has ADHD. Student misbehaves, and district holds a manifestation determination review. Should the team just consider whether the misbehavior is related to the SLD or should the team also consider the ADHD? Does it matter whether the team knew the student had ADHD at the time of the misbehavior or if, instead, the parent came to the manifestation determination with a new diagnosis? Here, OSEP says that the team must consider "all relevant information". Surely, information related to a known disability should be considered as part of the manifestation determination. If the parent brings information to the meeting about a previously unknown disability, the team should only "look back" with that information if the district "knew or should have known" of the disability. Either way, the district should consider and address the new information going forward. See Letter to Yuden,(OSEP, August 1, 2003).

September 2009

2009-09-01T19:40:00.000-07:00

Case of the Month: J.L. v. Mercer Island (9th Circuit, August 6, 2009)

Rowley lives!

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Two years after a US District Court in Washington declared the 1982 US Supreme CourtRowley standard obsolete, the 9th Circuit wholeheartedly disagreed, endorsingRowley without hesitation.

The story: J.L., a student with learning disabilities, received school district special education services through ninth grade, except for two years in a parent-placed private school for students with reading problems. Over the years, the district provided special education services in reading, writing and math, and responded to the occasional parent concern by making minor changes as needed. J.L. generally made progress toward her IEP goals (though did not meet each objective), and earned A's and B's with the occasional C.

At the end of 9th grade, through a series of IEP/placement meetings, the parents requested that the district fund an out-of-state private residential school; the district disagreed, at the same time refusing to write a specific teaching methodology into the IEP because the "experts recommended several effective programs, not just a single 'right' choice." The district's IEP for 10th grade offered about 3.5 hours per day of special education services in reading, writing, math, study skills and transition skills, along with accommodations in J.L.'s general education classes (e.g. books on tape).

After an eleven day hearing, the administrative law judge ruled for the district, finding that the district's proposed IEP provided a free appropriate public education as required by Rowley. On appeal, in an extreme "outlier" opinion, the federal district court stated that Rowley no longer applied, and, ultimately, that the district had not provided IEPs that would provide the student with "economic self-sufficiency" and other transition-mandated outcomes, and was required to fund the private program in its entirety (about $150,000 for three years and an equivalent amount in attorney fee reimbursement).

The 9th circuit affirmed Rowley, found no procedural violations, and remanded to district court to decide whether the ALJ was correct in finding the District complied withRowley.

Lessons learned:

In footnote 10, the Court clarified that the terms "educational benefit", "some educational benefit" and "meaningful educational benefit" all mean the same thing. Under Rowley, "[s]chool districts must, to 'make such access meaningful', confer at least 'some educational benefit' on disabled students." Rowley does not require publicly-funded services above and beyond that threshold.
The district's "pre-meeting" did not constitute impermissible "pre-determination" because the court had no evidence that any decisions were made at this preparatory meeting; the district changed some aspects of the IEP at the actual meeting which provided further evidence that the IEP meeting was not a "take it or leave it" process.
The district did not violate the IDEA by not writing a specific methodology into the IEP where various teaching methodologies could be effective with J.L.

August 2009

2009-08-01T19:40:00.000-07:00

Case of the Month: Forest Grove School District v. T.A. (US Supreme Court, June 22, 2009)

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The story: Six years ago, when T.A. was a junior and recently diagnosed with ADHD, his parents placed him in a private residential therapeutic boarding school. After his enrollment there, his parents sought funding for the placement through the school district. T.A. had been evaluated for special education during his freshman year and the team, including the parent, concurred he was not eligible. After the unilateral placement and a new evaluation by the district, the team met again but did not reach consensus - the district concluded that he was not eligible because the student's ADHD did not have a significant adverse impact on his educational performance. The parents prevailed at a due process hearing, and the district prevailed on appeal in District Court. The Ninth Circuit sent the case back to the District Court to reconsider theequities (essentially, fairness), rejecting the argument that the IDEA barred the parents from reimbursement because T.A. had not previously received special education from the district. The US Supreme Court agreed with the Ninth Circuit. The District Court should issue a ruling on the matter in the next few months.

Lessons learned: This case is big because we are always eager to hear what the Supreme Court says about the IDEA. But the case is small because it only addresses one small part of the question. The Supreme Court did not answer the big question - whether the circumstances justified district reimbursement for the parent's unilateral private placement. That decision, to be made by the District Court on remand, will turn on the parent's conduct and the district's conduct leading up to the placement (and, possibly, after). Did the parents give the district ample notice of their intended placement? Did the district have an opportunity to address the student's needs before removal by the parents? Was the reason for the out-of-home placement truly educational? Did the District unduly delay responding to the student's educational needs?

Forest Grove, like every other "child find" case, is timely to think about at the beginning of the school year. Do your general education teachers, particularly at the high school level, know what red flags should prompt a referral for special education consideration? Do the counselors know? Is this on your back-to-school agenda?

For a discussion on determining adverse impact, see the June 2009 case of the month.

Read what another parent has to say about special education in the Forest Grove School District.

June 2009

2009-06-01T19:39:00.000-07:00

Case of the Month: L.I. v. Maine School Administrative District , (1st Cir., 2007) - "adverse impact"

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First, this is a case from the First Circuit, which is not precedent in Oregon. But it is instructive for a state like Oregon that does not have a specific definition of "adverse impact" as some states apparently do. While not "new" - it was decided in March 2007 - I just read it again and it provides very detailed analysis of the eligibility framework under the IDEA.

The story: L.I. was a sixth grade student who excelled academically but experienced "sadness, anxiety, and difficulty with peer relationships". She attempted suicide with her prescription medication, was hospitalized, and her parents sought special education services for her. They had her evaluated by a private neuropsychologist who identified Asperger's syndrome and a depressive disorder. This and other evaluations identified limitations in adaptive skills, executive skills, poor pragmatic language abilities and poor social skills. The evaluators recommended social skills intervention and cognitive-behavioral therapy.

The district found that she was not eligible under the IDEA because although she apparently met the disability criteria for autism (not completely clear in the case), the disability did not have an adverse impact on her education. The court disagreed, stating that adverse impact on education was broader than just academics and "adverse impact" did not have a qualifier attached - such as substantial, significant or marked. So, just about any "adverse impact" (negative impact) would be enough. "[N]o impact, or a positive one, will not do." The team still had to find that the student needed "special education services". Here, the student needed social skills intervention which had an instructional component so was sufficient for the needing special education prong.

Lessons learned:

This case suggests that what we think of as a three prong requirement for eligibility (meets disability criteria, has adverse impact, and needs special education) is really a two prong - meets disability criteria and needs special education as a result. The "adverse impact" is really the connector between the other two. There must be a connection between the disability and the need for special education services. How much of an impact? Enough to require special education services. Courts seem to take a more pragmatic (rather than technical) view of this issue.

May 2009

2009-05-01T19:38:00.000-07:00

Case of the Month: Shaeffer v. Weast, (4th Cir., January 29, 2009)
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This case sounds familiar because it has been litigated since Brian Shaeffer was in the 8th grade during the 1998-1999 school year. He has long since graduated high school, but the case lives on, most notably for a 2005 US Supreme Court decision affirming the ALJ's initial assignment of burden of proof to the parents. This most recent 4th Circuit decision affirms the ALJs decision on the merits - that the district's 8th grade IEP for Brian, developed ten years ago, provided FAPE.

The story: Brian attended private school through 7th grade, when his parents asked the district for a program to address his ADHD and other learning disabilities. The district evaluated him, found him eligible as a learning disabled student and developed an IEP with parent participation. The IEP included: reading and writing support in a resource room for 45 minutes per day; co-taught (regular ed and special ed teachers) classes for English, Science, and World Studies; speech-language therapy for 45 minutes per week; general education classes for art, math, and PE; and accommodations across all classes (computer use, copies of lecture notes, preferential seating, etc.).

When the parents objected to the proposed placement at the neighborhood public middle school, the district offered an alternative location with an additional class in the learning center. The parents believed the student needed a placement with smaller classes due to an auditory processing problem and filed for a due process hearing, seeking tuition reimbursement and placement in a private school. The administrative law judge found the district offered FAPE.

Here, the 4th Circuit agreed, finding that the IEP the district and parent developed for 10th grade, calling for placement in a high school learning center, did not prove the earlier placement was inappropriate. Determination of FAPE is based on looking forward, not looking back. Further, the parents' experts were not as credible as district staff at the hearing. Neither expert had observed or was familiar with the co-teaching model used at the middle school, and one expert had only met with the student for ten minutes. In the end, the primary flaw with the parents' argument was that they "sought more than the IDEA requires". The parents' experts were seeking small classes for the student to "maximize his potential" rather than to provide him educational benefit under Rowley.

Lessons learned: This case shows just how "broken" the special education litigation model is. Ten years is way too long to answer a question as simple as "did the 8th grade IEP provide FAPE?" This case screams for alternative dispute resolution. But alternative dispute resolution takes reasonable parties with reasonable expectations and a willingness to be child focused in an era of extremely limited public dollars. Are there creative solutions to these types of problems? Absolutely! Are we willing to try? I can only hope the answer is yes.

April 2009

2009-04-01T19:38:00.000-07:00

Case of the Month: Salem-Keizer School District, DP 08-120 (ODE, December 23, 2008) - high school math

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In 2008, there were 28 due process hearings filed in Oregon. All but five were settled or withdrawn for other reasons. This case is one of the five that went to hearing. Like most cases that go to hearing, it turns on what is "FAPE". Here, the question is whether a high school student with autism and a specific learning disability in math needed "exclusive one-on-one tutoring" in math for FAPE.

As a junior, the student took Algebra I and, predictably, had difficulty. In November, the parents filed a due process hearing seeking "exclusive one-on-one tutoring" for math. The district and parents settled, with the district providing one-on-one services for several months in the spring and for ESY in the summer.

Although the student had fulfilled his math requirement for graduation (he passed Algebra I with a "D"), he wanted to take another year of math to increase his chances of getting accepted to college. Again the parents filed a due process hearing to seek continuation of the one-on-one math tutoring.

This time the case did not settle and the ALJ agreed with the district that placement in the LRC academic support class was reasonably calculated to provide educational benefits to the student, and one-on-one tutoring was not necessary.

Here are some of the factors that influenced the outcome of this case:

The ALJ found the parent had limited credibility as a witness because the parent was "uncooperative and evasive during the hearing" and withheld documentation. The student's credibility was affected by poor memory and s/he was "overly influenced by Parent, who had a strong bias against District."
The district's autism specialist gave expert testimony that the student could learn in the academic support class, and would benefit from peer involvement in that setting, which was less restrictive than one-on-one tutoring.
The district offered to make one-on-one tutoring available in a separate space when needed in specific situations.
The student's voluntary participation in band and other classes with background noise detracted from the premise that the student could not learn with other students in the LRC.
Given the student's age and limited time left in public education, providing math instruction in the LRC would be more likely to prepare the student for future learning and living environments.
The IDEA does not guarantee a placement that parents and students prefer. (Here, the student did not like for other students to know that he needed help in math.)
An increase in math scores alone was not persuasive evidence that "exclusive one-on-one tutoring" in math was necessary for APE.
Although staff held "pre-meetings" before some of the IEP meetings for the students, these pre-meetings were used to develop proposals and did not constitute "predetermination" of IEP or placement.

Lessons learned: On the surface, it is surprising this case went to hearing, but sometimes districts just feel enough is enough. The ALJ confirmed that what the district was offering was not only reasonable but also consistent with IDEA. Hopefully this lesson will not be lost on other families contemplating legal action.

March 2009

2009-03-01T19:37:00.000-08:00

Case of the Month: T.P. and S.P. v. Mamaroneck School District (2nd Circuit)
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This Second Circuit case from New York addresses the recurrent theme of "predetermination".

Here's the story: In preschool, the district provides this child with autism a regular preschool program for ten hours per week with an adult assistant, 30 hours of ABA services at home, and speech and occupational therapy. Now the child is transitioning to kindergarten. The parents want to continue home-based ABA services (25 hours per week) along with a full-time adult assistant at school and private OT and speech five times per week.

Not surprisingly, the June IEP team does not agree and the parents bring in an outside expert who supports their position. In July, the IEP team meets again to consider the expert's report and recommendations and modifies the IEP to include 10 hours of school-based ABA and various transition services during the summer. Just before the July IEP meeting, the district's behavior consultant reviews the expert's report and makes recommendations for services. The ultimate IEP reflects the behavior consultant's recommendations.

Parents request a hearing, and the district prevails through the two-tier hearing process. The federal district court rules for the parents, but the 2nd Circuit disagreed, supporting the hearing officer/ALJ decisions. In sum, the 2nd Circuit found the district did not "predetermine" placement by developing proposals in advance of the meeting. The district's actions at the meeting reflected a responsive posture, where the district made changes to the June IEP to add ABA services (at school) and transition services over the summer. The staff did not have a "take it or leave it" attitude, and the parents had a meaningful opportunity to participate in the decision-making process.

Substantively, the court quoted from Rowley that school districts are not required to "furnish[] every special service necessary to maximize each handicapped child's potential". The court deferred to the well-reasoned findings of the hearing officer/ALJ that the IEP appropriately addressed the student's needs.

Lessons learned: The lessons here are pretty clear. Evidence of a good faith "give and take" over an IEPs contents suggests an open mind even if the results are not what the parents want for the child. Parents and district personnel alike are allowed to prepare for IEP meetings. Such preparation will not be considered "predetermination" as long as the preparation sessions are not decision-making venues, and IEP participants approach IEP meetings with some level of flexibility.
When the team does not reach consensus, the school must offer a reasonable solution that addresses the student's educational needs.

February 2009

2009-02-01T19:37:00.000-08:00

Case of the Month: Thompson R2-J School District v. Luke P. (10th Circuit)

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This 10th circuit case from Colorado tells a story that sounds familiar: At age 2, Luke is diagnosed with autism. In kindergarten through grade 2, he makes progress at school in many areas but his behavior problems at home are "especially severe." He is sometimes violent at home and in the community, has sleep problems and inappropriate toileting behavior. In the fall of Luke's third grade year, Luke's parents are unsuccessful in convincing the district that he needs residential placement due to lack of generalization of his skills from school to home. The parents give the district notice, unilaterally place him at the Boston Higashi School (remember Ash?), and request a due process hearing.

The parents prevail through both levels of Colorado's two tier hearing system (five day hearing and review process) and federal district court. The state level ALJ noted that Luke had achieved nearly a quarter of the goals and objectives on his IEP, "was making slow [but] steady progress toward others" and overall was advancing on his goals at school, but was unable to transfer his learned skills and use them outside of school. It was this "generalization deficiency" that warranted residential placement.

The 10th Circuit disagreed, stating: "Though one can well argue that generalization is a critical skill for self-sufficiency and independence, we cannot agree with appellees that IDEA always attaches essential importance to it." In other words, when a child's skills in the school setting do not generalize to the home, "other resources [not IDEA] must be looked to." (The court distinguishes Ash v. Lake Oswego SD, a 1991 case from Oregon requiring reimbursement for residential placement at the Higashi School, because in that case the student's "generalization deficiencies or regression tendencies were so severe that they essentially prohibited any learning or progress on the student's IEP goals.") (emphasis added)

In sum, "a school district is not required to provide every service that would benefit a student if it has found a formula that can reasonably be expected to generate some progress on that student's IEP goals."

The parents filed for U.S. Supreme Court review on December 19, 2008.

Lessons learned:

* The opinion notes that the school district officials "expressed openness to revising Luke's IEP to include the parents' proposed goals" and to working with the parents' private expert to improve their special education program. The opinion also notes the ALJ's finding that the district made a "monumental and genuine effort" to improve Luke's performance in a number of areas affected by his autism. The district did not abandon its efforts to assist Luke in generalizing skills in the face of the parents' request for residential placement. The opinion implies that the district carefully monitored and reported on the student's progress. We can all learn from this district's experience.

November 2008

2008-11-01T19:33:00.000-07:00

Case of the Month: M.M. v. Special School District No. 1, (8th Circuit, January 4, 2008, cert. denied October 20, 2008).

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This convoluted case from the 8th Circuit (not precedent in Oregon), better known for its burden of proof holding, addresses interesting discipline and placement issues. The US Supreme Court just declined to review it.

The student, identified as emotional disturbed with academic and speech-language needs, was in seventh and eighth grade during the relevant time period. In seventh grade she was suspended from School A for fighting with another student and attacking a staff person who attempted to intervene. After a ten day suspension, the district moved her to School B without conducting an IEP meeting. The student completed the school year at School B, made academic progress, but made "insufficient" progress on her behavioral goals. At the beginning of eighth grade, the parent enrolled the student in an out of district charter school, but after one month returned her to School B.

The 8th Circuit found that the parent could not now raise objections to the "failure to review the IEP" before moving the student because the parents did not not request any changes to the IEP, did not protest the transfer, and did not request a due process hearing. The district did not deny FAPE because the student did not make progress on her behavioral goals: "When a child's primary disability is a behavior disorder, the school district does not violate IDEA simply because the child failed to achieve the IEP's behavioral goals."

After the student returned to School B, the district then held an IEP meeting and increased her time in special education settings to work on academic and behavioral goals. She was suspended several times that fall, resulting in IEP team meetings, an increase in time in special education settings and a new functional behavior assessment and behavior intervention plan. The student continued to make progress on her academic and speech-language goals, and continued to work on her behavior goals.

In January of eighth grade, the student was suspended for five days for attaching a vulnerable student. The IEP team, including the parent, agreed that School B was no longer appropriate and the district proposed moving the student to a special class for at least 60% of the school day at School C. The parent objected to the proposal because there were too many boys in this class. The 8th Circuit, disagreeing with the ALJ and the district court, found the district's proposal appropriate because the student's previous aggressive behavior all involved altercations with girls and there were no immediate openings in the classroom with more girls.

The district and parent agreed to try mediation. In the meantime, the student returned to School B, where she was suspended several more times. The district again proposed the move to the class as School C. The parent again refused.

In mediation, the parties agreed to a less restrictive placement at School D, where the student was almost immediately suspended. Again disagreeing with the lower court, the 8th Circuit found the district did not violate the IDEA by agreeing to try this less restrictive placement. After the suspension, the student returned to school D, where she did well for the rest of the school year. At that point the parent requested a due process hearing. At the hearing, the parent argued that the district should have offered an out of district placement. The ALJ and reviewing courts all rejected this argument, finding that the ED classroom was appropriate. However, the 8th circuit also found no basis for the lower court's award of compensatory education services, finding the parent rejected the district's offer of home instruction during suspensions.

Lessons Learned:

1. The IDEA discipline rules are as convoluted as the facts in this case. Often tensions are high, timelines are short, and options are limited. It's a good time to seek legal advice.

2. Although the district ultimately prevailed, it could have avoided one of the claims in this case by holding an IEP meeting before transferring the student to School B. The purpose of such a review would be to look at the behavioral goals and services and review the behavior plan to determine whether the goals, services and interventions are still appropriate in light of this new behavior or whether changes need to be made. The team might have decided that a lateral transfer (or change in location) was not sufficient and the student needed a more restrictive "change in placement" at that time.

3. The court would not likely have been as sympathetic to the district's position if the student had not been making progress on her academic and speech-language goals. Schools must address lack of progress and not wait until the annual IEP meeting. Here, the district impressed the court by its continuous efforts to address the student's behavioral needs by making changes to the student's program, proposing alternative placements, etc.

4. The district was able to demonstrate that it offered services to the student at home during further suspensions after the first ten school days of suspension. Although the parent refused these services, the court found that compensatory education services were not warranted. Just a reminder -- students who are suspended for more than ten school days in a school year, services must be provided services - both general education and special education.

a. For suspensions of more than ten days that are not a "pattern" - school personnel decide (in consultation with the child's teacher) on the amount and location for the services to be provided. OAR 581-015-2410(2).

b. For suspensions of more than ten days that are a "pattern" and the behavior is not a manifestation of the student's disability - the IEP team decides where the services will be provided. OAR 581-015-2415(5) and 581-015-2435.

c. For suspensions of more than ten days that are a "pattern" and the behavior IS a manifestation of the student's disability - the student must be returned to the placement from which the student was suspended unless the behavior is one of the "special circumstances" (drugs, weapons, serious bodily injury) that would justify a removal to an interim alternative educational setting, which must be determined by the IEP team. OAR 581-015-2415(4). [The student may also be moved to another setting if the parent and district agree, if the district gets an ALJ or court order for removal, or if the IEP/placement team decides on a change in placement.]

October 2008

2008-10-01T19:32:00.000-07:00

Case of the Month: N.B. and C.B. v. Hellgate Elementary School District (9th Circuit, September 4, 2008).

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Like Amanda J., this case out of Montana highlights the importance of careful reading of student records and ignoring suspected autism at your own peril.

In Oregon, as in many other states (but perhaps not all), teams are not required to find a student eligible in all applicable categories - one will do, but the team must evaluate in all areas of suspected disability and address all special education needs in a student's IEP (or IFSP for preschool children). OAR 581-01-2120(4).

In Hellgate, a 3 year old student moved in from out of state with an IEP calling for 12.5 hours per week of special instruction, including 2 hours per week of speech therapy. The parent also gave the special education director a copy of a private evaluation noting that the student exhibited characteristics of autism. The new district implemented the out of state IEP (see 34 CFR 300.323(f)) until holding an IEP meeting in mid-September. At that meeting, the team initiated an evaluation consisting of 6 weeks of observation by various service providers to gather more information to address the student's needs on the IEP. But the team did not initiate an autism evaluation, arguing later because the parent did not raise this as a concern. At the same time, the team reduced IEP services by more than half pending completion of the evaluation.

In November, when the team met again to review the assessment, the parents raised concerns about possible autism. The district referred the parents to an outside agency where the parents could obtain a free autism evaluation. In April, the outside evaluation was completed, indicating autism spectrum disorder, and the district increased the IEP services back to the move-in IEP levels.

The Ninth Circuit found that the district failed to meet its obligation to assess the student in all areas of suspected disabilities after becoming aware of the private evaluation, and that simply referring the parent to an outside agency was an abdication of the district's responsibility. Without the information related to autism spectrum disorder, it was not possible for the team to develop a plan reasonably calculated to provide meaningful educational benefit to the student. As a result, the Court awarded the parents with reimbursement for the costs of the private services they obtained that year.

The parents also asked for extended school year (ESY) services; the team did not reach consensus on this issue, resulting in a district determination that the student did not need ESY services based on a regression-recoupment analysis. The parents argued that the district's criteria was too narrow and should have been multi-factored.

Here, the Ninth Circuit found that the district's reliance on the regression/recoupment analysis was not an IDEA violation. Montana state policy permitted consideration of various factors in addition to regression/recoupment. The team discussed various factors, including whether the student was on the verge of breakthrough skills, as part of the regression/recoupment analysis. The court accepted the opinion of the district's witnesses, who had more contact with the student, and rejected the opinion of the parents' experts who testified generally about the need for year-round services for students with autism.

Lessons Learned:

1. Evaluate first, then base IEP team decisions on the evaluation. Here, the team acknowledged it needed more information to develop an appropriate IEP - so what was the basis for reducing services immediately?

2. If there are any evaluations in the student's record, or if any team member has an inkling of a suspicion that a student may have autism, particularly a preschool or elementary aged student, bring this information to the full attention of the team and make a very documented decision about whether to evaluate.

3. Because Oregon's regional autism program has specialists who assist districts and EI/ECSE programs with autism evaluations, it would be unlikely that a district or program would shift the responsibility to the parent to get an outside autism evaluation. But I can see this happening in other areas. If the team believes that an evaluation is necessary and does not have the capacity to conduct it, the district has the responsibility to ensure that it happens. This means taking on a direct role in contacting the outside agency, monitoring to ensure compliance with timelines, etc.

4. Take a look at your district's ESY policy. The federal regulation, 34 CFR 300.106, does not specify a criteria for ESY. The comments to the regulations indicate that a state "may use recoupment and retention as their sole criteria" but states have "considerable flexibility" in establishing state standards in this area. The Oregon regulation, OAR 581-015-2065, does not require consideration of factors other than regression-recoupment. However, if your state or district policy includes consideration of discretionary factors, the court may well hold you to consideration of those factors.

July 2008 - Student Health Plan or Section 504

2008-07-01T19:32:00.000-07:00

Cases of the Month: Schaeffer (CA) Union Elementary School District and Douglas County (CO) School District RE-1

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When may a district use a health plan instead of a 504 plan for a student with medical needs? Two fairly recent Office for Civil Rights (OCR) opinion letters provide some helpful guidance.

The first letter, Douglas County (C) School District RE-1, 107 LRP 36149 (OCR, September 8, 2006), concerned a kindergarten student with severe allergies. The district had a health care plan in place by the student's first day of kindergarten. The plan described the appropriate treatment in the event of allergic symptoms. The parent and staff also agreed on a set of actions and precautions to limit the student's exposure to dairy allergens in the classroom. In November, the parent asked for additional precautions. The principal and school nurse then met with the parent and offered a 504 plan to "formalize protections in place and, if justified by medical reports, . . . authorize additional accommodations." The school nurse contacted the student's allergist, who endorsed the current protections and did not recommend any additional actions. The district provided the parent with a copy of the district's 504 publication including "Section 504 policies, parent and student rights and procedural safeguards."

OCR concluded that the district did not violate Section 504: "[T]he District sought, received, and reviewed medical and other information to consider whether the services it was already providing met the Student's health and educational needs or whether it needed to proceed with the formal Section 504 evaluation and placement process. The District undertook steps to consider whether the Student had . . . a disability that would require the development of a Section 504 plan. The District determined that the Health Plan was appropriate and provided the complainant with the [Section 504] procedural safeguards."

Compare Shaffer (CA) Union Elementary School District, 107 LRP 61308 (OCR, January 19, 2007), concerning a sixth grade student with diabetes. The district's nurse had a developed a Health Care Plan for the student. The nurse, parent, and teacher reviewed the plan, and the nurse provided training on the plan to school staff. An incident occured when the teacher did not follow the provisions of the health plan. After repeated requests from the nurse and parent for a Section 504 plan for the student, the school principal offered a 504 plan to the parent without consulting the nurse. The parent did not agree with the 504 plan.

OCR concluded that the district violated Section 504 because:

1. There was no evidence that the district conducted an evaluation process before creating a Section 504 plan for the student;

2. There was no evidence that the district ensured that decisions were made by "a group of persons, including individuals knowledgeable about the student, the evaluation data, and the placement options"; and

3. The district unduly delayed development of the 504 plan.

Regarding the health plan, OCR stated that not only was it not followed appropriately, but "such a plan is not sufficient to substitute for a 504 Plan. Health plans, at least in this district, are developed without the procedural and due process protections of Section 504. There is no collaborative process for deciding how to evaluate the child, there is no collaborative process for deciding the meaning of the evaluation, and there are no standards...timelines...and most important, there are no procedural safeguards should a parent differ with the content of the plan."

Lessons Learned:

1. A stand-alone health plan may be an appropriate option for students with health conditions who do not meet the eligibility requirements for Section 504 or IDEA.

2. For students who meet the eligibility requirements for Section 504 or IDEA, an individual health plan may be an appropriate part of the 504 plan or IEP.

3. A health plan will not substitute for a 504 plan if the student meets 504 eligibility criteria, the health plan was developed in a unilateral manner without evaluation, and the district did not provide procedural safeguards to the parent.

June 2008 - Other health impaired eligibility

2008-06-01T19:31:00.000-07:00

Case of the Month: Alvin Independent School District v. A.D.

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What circumstances may a team consider in determining whether a student with ADHD "needs special education services" to qualify as having an Other Health Impairment under the IDEA?

This Fifth Circuit case involved an 8th grade student with ADHD who had behavior problems at school resulting in several disciplinary referrals. At the same time, he had a difficult family situation and abused alcohol. His school behaviors culminated in theft and robbery at a school-sponsored event, resulting in recommendation for an alternative school placement. At the same time, he passed all of his classes (mostly A's, B's, and C's with one D) and the state assessment. The district found the student was not eligible because he did not "need special education services" as a result of his ADHD.

The court supported the district's decision. The student's passing grades and success on the state assessment demonstrated academic progress, which was an "important factor" in determining educational benefit. Despite his behavioral issues, he was "achieving social success in school". The court placed more weight on the testimony of teachers than on the doctors, "who based their opinions on faulty information culled from isolated visits, select documents provided by A.D.'s mother, and statements from A.D.'s mother about what she believed was happening in school." The district also convinced the court that much of A.D.'s behavioral problems were due to his alcohol abuse and family circumstances, not the result of ADHD. Alvin Independent School District v. A.D., 48 IDELR 240 (5th Cir., October 4, 2007).

Lesson Learned: School districts may take academic progress into consideration but must also consider social and behavioral needs. Schools should not "defer" to prescription pad recommendations for special education services, but should consider this information along with other information about the student's educational, social and behavioral needs. This case is a reminder that unacceptable behavior is not always disability related. Still, drawing the line is difficult, particularly with ADHD.

May 2008 - Residential placement

2008-05-01T19:31:00.000-07:00

Case of the Month: Forest Grove School District v. T.A.

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May parents seek tuition reimbursement from a school district for a private placement if the student never received special education from that school district? The Ninth Circuit just ruled yes (2-1), adopting the reasoning from the Second Circuit in Frank G. v. Board of Education of Hyde Park (2006), and rejecting the reasoning in the First Circuit in Greenland School District v. Amy N. (2004).

In Forest Grove, the student attended public school through the spring semester of his junior year in high school, when his parents unilaterally placed him in a wilderness program and then a private residential school. He had been evaluated for special education in his freshman year and found not eligible (parents agreed); the parents did not request another evaluation before removing him from public school. However, he was only evaluated for specific learning disability and not for ADHD (OHI) although meeting notes indicated that staff suspected ADHD at the time, and staff did not follow up on a 504 plan although it was mentioned in the psychologist's report.

During his sophomore year, he began using marijuana and ran away from home. A private psychologist diagnosed ADHD, depression, math disorder and cannabis abuse, and recommended residential placement. At hearing, the administrative law judge found that the student met the criteria for special education, the district did not offer FAPE, and was responsible for tuition reimbursement for the private residential school (but not the wilderness program).

On appeal, the federal district court reversed and sent the case back, holding that, based on a plain reading of the statute, the tuition reimbursement provision in IDEA was limited to students who had previously received special education from the school district, adopting Greenland. To cover its bases, the court also held that the "equities" did not require reimbursement.

The Ninth Circuit disagreed, saying that Congress did not intend to limit tuition reimbursement only to students who had previously received special education from the school district (although that's what the statute says), and that the judge below did not properly determine the "equities". The court rejected the notion that tuition reimbursement would only be available in "extreme" cases. Rather, a court "should consider all relevant factors in determining whether to grant reimbursement and the amount of reimbursement...", such as whether the parents gave "meaningful" notice, whether the district "had been given a reasonable opportunity to complete the process of evaluating...and making a placement recommendation, "the existence of other, more suitable placements, the effort expended by the parent[s] in securing alternative placements[,] and the general cooperative or uncooperative position of the school district." The court noted that the lower court could consider the reasons

for placement, which in this case included not only the student's disabilities, but also unrelated reasons ("i.e. substance abuse and behavioral problems"). As noted by the dissent, the court did not "compel a finding of reimbursement on remand."

Lesson Learned: As I said last month, "equity" essentially means "fairness". The lesson here for school districts goes back to having effective child find systems in high school and, when a tuition reimbursement situation arises, to keep an open mind and cooperative spirit. The lesson for parents is to meaningfully engage in the special education process, including trying options, before concluding that the public school can't meet the student's needs.

April 2008 - Residential placement

2008-04-01T19:30:00.000-07:00

Case of the Month: Los Angeles Unified School District v. D.L.

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Is reimbursement for an independent educational evaluation (IEE) an appropriate remedy when a district should have but did not evaluate a student for special education eligibility? Here, the court says yes, although the parent did not disagree with an evaluation by the district.

D.L. was a kindergarten student who had just returned home after three years in foster care. He had a difficult adjustment to kindergarten, frequently acting out at school. The parent requested a special education assessment early in the school year but the district refused because the student had limited school experience and no history of general education interventions. The court found that D.L.'s behavior (roaming the playground, falling out of his chair, making noises, not following directions, walking on tables, tearing up other students' work), along with D.L.'s ADD diagnosis, should have prompted an evaluation. The court found that equitable considerations required the district to fund D.L.'s IEE. Los Angeles Unified School District v. D.L., 48 IDELR 252 (C.D. Cal., March 10, 2008).

Lesson Learned: "Equitable considerations" essentially means "fairness". The lesson here is that if a child is exhibiting signs of a disability, the district cannot delay an evaluation to complete general education interventions. If "specific learning disabilities" is suspected, the progress monitoring data may be collected as part of the evaluation process. This is one of those evaluations where the team may want an up front written agreement to extend the evaluation timeline to collect this type of data as part of the evaluation. Of course, if "other health impaired" is suspected (based on the ADD diagnosis), progress monitoring data is not required, at least in Oregon.

March 2008 - Residential placement

2008-03-01T19:30:00.000-08:00

Case of the Month: L.G. & K.G. v. School Board of Palm Beach County

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The parents of an 8 year old boy with an emotional disturbance sought reimbursement for a unilateral private residential placement. The administrative law judge found reimbursement was not required, and both the federal district court and 11th Circuit agreed. L.G. & K.G. v. School Board of Palm Beach County (11th Circuit, October 16, 2007)(unpublished).

The student, adopted at birth, was diagnosed with a mood disorder, impulse control disorder, ADHD, bipolar disorder, and schizoaffective disorder. He began exhibiting serious behavior problems at age 3. The family moved from New York, where the school district had recommended a residential placement, to Florida, where the team, after reviewing the NY IEP, developed a new IEP and placed the student in a therapeutic day school. After a hospitalization following an episode of violent behavior at home, his parents placed him in a residential program and then sought reimbursement from the district.

The IDEA requires districts to use the least restrictive means to educate students with disabilities, and is forbidden from funding a placement that fails to educate a student in the least restrictive environment. Reimbursement for private placement is only available under the IDEA if the parents demonstrate that the district did not provide an appropriate education and the parent's placement was proper under the IDEA. The standard for an appropriate education is whether a student is making "measurable and adequate gains in the classroom", not whether the child's progress in a school setting carried over to the home setting (citing Devine v. Indian River County School Board (11th Cir 2001)). Because the evidence indicated that he was making progress in the classroom, and all of the parents' evidence related to the student's out of school behavior, the parents were not entitled to reimbursement.

Lesson learned: Here, the school district was able to show that the therapeutic day school provided a broader array of services than the student's day school in New York, "such as certified teachers, on-site clinical therapy," and programs tailored for students with emotional disturbances. Further, although the family moved to the district at the beginning of the summer, the district acted immediately to develop an IEP for the student and offered ESY services, which the parent declined. Also, because the parents were concerned about the day school program, the school agreed to a nine week trial period at the day school and to help the parents access community resources through an assigned caseworker who could coordinate services such as respite care, behavior management training, and at home therapy. [The district court decision is reported at 47 IDELR 64 (January 26, 2007)] All of these factors were material to the finding that the district had offered FAPE to the student.

February 2008 - Damages under Section 504 for FAPE violations

2008-02-01T19:30:00.000-08:00

Case of the Month: Mark H. v. Lemahieu

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In this 9th Circuit appeal from Hawaii, the parents of two children with autism sought money damanges under Section 504 based on prevailing in an IDEA due process hearing establishing a denial of FAPE. The 9th circuit sent the case back to federal district court for a determination as to whether the district violated FAPE under Section 504. Mark H. v. Lemahieu (9th Circuit, January 17, 2008).

The court described four steps to getting money damages under Section 504 in this type of case.

1. Exhaust administrative remedies under IDEA. [This means that, typically, parents must go through a due process hearing - which, in Mark H., the parents did - if the injury asserted could be remedied under the IDEA "to any degree."]

2. Demonstrate a denial of FAPE under the 504 regulations. [Under Section 504, FAPE means "the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the [procedural] requirements..." 34 CFR 104.33.]

3. Show that the specific Section 504 FAPE regulations "can be interpreted as a variety of meaningful access regulation" and thus within 504's implied private right of action.

4. Prove "intentional discrimination", which means that the district either intentionally or with "deliberate indifference" failed to provide meaningfull access or reasonable accommodation to students with disabilities. "'Deliberate indifference" means "knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood". [This is in relation to FAPE under Section 504.]

Lesson learned: Since this case has been returned to federal district court, the ultimate lesson isn't known just yet. For now, in the 9th Circuit, parents may not use Section 504 to get money damages for IDEA violations, BUT parents may get money damages if the circumstances ALSO deny FAPE under Section 504, are within 504's "implied private right of action" and the parent can prove intentional discrimination or deliberate indifference.

Note: In Oregon, special education administrative law judges have jursidication under both IDEA and Section 504, so it would be more likely that a full administrative record would be presented to the court on appeal and less likely that a return to federal district court would be necessary.

January 2008 - Specific learning disability eligibility (need for special education services)

2008-01-01T19:29:00.000-08:00

Case of the Month: Hood v. Encinitas Union School District

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After an evaluation, the eligibility team found this fifth grade student did not have a specific learning disability under the IDEA. Despite possible discrepancies between ability and achievement, the student was generally performing at grade level and did not demonstrate a need for special education services (The court notes that the student did receive a D+ (performance) and S- (effort) for spelling in fourth grade, but these were exceptions.) Likewise, while the student did have some medical issues and may have met the disability criteria for other health impaired, she did not need special education services under that category either. The accommodations provided under a 504 plan in the regular classroom were adequate to address the student's needs such that she was benefitting from the general curriculum. Hood v. Encinitas Union School District, (9th Circuit, April 9, 2007, amended May 11, 2007).

Here, the court said "it is appropriate for courts to determine if a child classified as non-disabled is receiving adequate accommodations in the general classroom - and thus is not entitled to special education services - using the [Rowley] benefit standard." Grades and teacher assessments are important in determining whether a child with a discrepancy is "reaping some educational benefit in the general classroom".

Lesson learned: While the circumstances in this case arose before the IDEA 2004 amendments (and also involved specific California law), many school districts are still implementing a modified discrepancy formula as part of a "strengths and weaknesses" model. Every eligibility determination is a three-pronged decision - whether the student meets the state's disability criteria, whether the disability is adversely affecting the student's education, and whether, as a result, the student needs special education services. Hood v. Encinitas involves the third prong of this determination and supports looking at a student's classroom performance (whether the student is benefitting without special education), rather than just looking at standardized test scores, to determine whether special education services are needed.

December 2007 - Transfer students Termine v. William S. Hart Union High School District (9th Circuit, September 28, 2007).

2007-12-01T19:28:00.000-08:00

Case of the Month: Termine v. William S. Hart Union High School District

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The Ninth Circuit recently gave a clue about how it will interpret the new transfer student provisions under the IDEA. Here, the student moved into the district in October with an IEP calling for no time in general education. First, the District delayed providing services for a two week period. Then, the district made a placement offer that called for 32 percent participation in general education, which the court concluded was a material failure to implement the move-in IEP (citing Van Duyn v. Baker School District). Third, the district did not hold a required IEP meeting ("whether or not [the] mother chose to participate"). For all these reasons, the court found a denial of FAPE for an entire school year.

Although the parent's unilateral private placement was appropriate, the court upheld the district court's order that the district reimburse the parents for half (rather than all) of the cost of the private placement because the parent was "uncooperative to the point where she contributed to the delay in [ ] assessment and the delay and ultimate failure to hold an IEP meeting . . . "

Note: This case was designated "not for publication" by the Ninth Circuit Court of Appeals.

Termine v. William S. Hart Union High School District (9th Circuit, September 28, 2007).

Lesson learned: Although this case was decided under California law which predated the IDEA 2004 amendments, the IDEA 2004 language provides similar protections for students with disabilities transferring from one district to another. State and federal regulations require the new district "in consultation with the child's parents" to "provide a free appropriate public education to the child (including services comparable to those described in the child's IEP from the previous district)" until the new district either adopts the previous IEP or develops a new one. This case indicates that the courts will look at the extent of nonparticipation as one factor in determining whether the IEP has been implemented.

November 2007 - Parent participation

2007-11-01T19:23:00.000-07:00

Case of the Month: E.P. v. San Ramon Valley Unified School District

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When can a district proceed with an IEP meeting without the parents present? Here, the district provided a first grade student with autism with a general education classroom for 80% of his school day, a special classroom for the rest of the school day, a one-to-one assistant, and in home services (ten hours per week). When a dispute arose towards the end of first grade, the district held three IEP meetings in June and August with the parents and their attorney. At the third meeting, the IEP team was unable to complete the student's IEP, and the district attempted to schedule a fourth meeting for August 30, the day before school started. After a period of argument, the parent's attorney said she wouldn't be available and the parents would not be available either. The district held the meeting anyway, and hand-delivered the resulting IEP to the parents that evening. The final IEP, based on all of the meetings, did not include the in home services.

Distinguishing this situation from Shapiro v. Paradise Valley USD (a 2003 9^th Cir case),the court found the district did not deny the parents an opportunity to participate in the formulation of the IEP. Here, "at least one parent chose not to attend a critical IEP meeting on the last possible day" to complete the IEP before school started and the district had a statutory obligation to have an IEP in effect at the beginning of the school year. The district offered an alternative (a "stay put" placement from a previous settlement) which the parents rejected. Therefore, the district was not simply "prioritizing its representatives' schedules over that of [the] parents, as in Shapiro." E.P. v. San Ramon Valley Unified School District, 48 IDELR 66 (N.D. Cal., June 21, 2007).

Lesson learned: Here, the district had a record of its substantial efforts to schedule a meeting time before school started, and also offered an alternative (the "stay put" placement), which the parents rejected. Also, the parents' reasons for not being available appeared flimsy to the court. This case still sets a high threshold for accommodating parents' scheduling needs, but draws the line when parents' refusal to attend an IEP meeting appears to be a manipulation of the process.

Note: This case may be instructive but is not direct precedent in Oregon.