November 2008

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

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

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

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

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

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

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

Case of the Month: Mark H. v. Lemahieu ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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)

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.