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 L.G. & K.G. v. School Board of Palm Beach County (11th Circuit, October 16, 2007)(unpublished).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.

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

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

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

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

Note: This case was designated "not for publication" by the Ninth Circuit Court of Appeals.

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

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

November 2007 - Parent participation

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

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

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

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

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

October 2007- IEP implementation:

Case of the Month: Baker School District v. Van Duyn

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IEP implementation issues are more often the subject of complaints than due process hearings. Here, the parent went the due process hearing route, arguing that the district violated the IDEA and denied the student a free appropriate public education (FAPE) by not implementing various aspects of the student's IEP.

On review, the Ninth Circuit held that "a material failure to implement an IEP violates the IDEA. A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP." This does not require that a child "suffer demonstrable educational harm", but "educational progress, or lack of it, may be probative of whether there has been more than a minor shortfall in the services provided."

In each instance, the court found the implementation discrepancies were not material. For example, although the middle school implemented the student's behavior plan differently than the elementary school, the IEP did not require the same implementation and the student's behavior actually improved. While the IEP did require that the student be instructed at his level, the evidence was conflicting and the court found no evidence that the student's educational progress was hindered based on any exposure to more advanced material. Also, although the middle school did not have a designated "self-contained" classroom, the district's adaptations met the "self-contained classroom" placement description based on class size, ratio and individual educational assistant support.

Note: The court is not giving districts permission to deviate from IEPs. "IEPs are clearly binding under the IDEA, and the proper course for a school that wishes to make material changes to an IEP is to reconvene the IEP team pursuant to the statute--not to decide on its own no longer to implement part or all of the IEP."

Baker School District v. Van Duyn, No. 05-35181, (9th Cir., September 6, 2007), amended opinion.

Lesson learned: Although the district ultimately prevailed on most of the issues, the case involves an IEP from the 2001-02 school year, when the student transitioned from elementary to middle school. This transition is difficult for many families, particularly those with students with disabilities. Making IEP revisions up front to address the student's needs in the middle school environment may prevent disputes down the road.