June 2010

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

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

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

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

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).