December 2009

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

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

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

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

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

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

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

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

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

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.