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.

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.