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.