1994-95 Vol. 8, No. 7
An "Ounce of Prevention..." News
STAY PUT DOES NOT APPLY TO
NON-IDEA STUDENT WHO ALLEGES
DISABILITY AFTER BEING DISCIPLINED
In an effort to clarify the various requirements with respect to the
disciplining of students with disabilities, particularly given the passage
of the "Gun-Free Schools Act" which amended IDEA, the Office of
Special Education Programs of the U.S. Department of Education (OSEP)
issued a lengthy memorandum in a question and answer format covering a
multitude of issues (Memorandum 95-16, 22 IDELR 531 (OSEP, 1995)).
Many of the questions and answers relate to matters which are fairly well
established and understood. However, some aspects of the memorandum do
provide significant clarification and guidance and they were as follows:
With regard to a student not previously identified as disabled under IDEA, a parental request for an evaluation or hearing after a disciplinary suspension or expulsion has commenced does not obligate the district to reinstitute the student's prior in-school status. This is because the student's then current placement is the out of school placement. After the disciplinary sanction is completed, if the due process hearing is still pending, the student must be returned to school as would any non-disabled student in similar circumstances. Also, if pending resolution of the due process hearing a court, at parental request, determines that the district knew, or reasonably should have known, that the student was disabled (and in need of special education) the court could enjoin the suspension/expulsion and direct the district to reinstate the student.
OSEP stated that before a district seeks a Honig
injunction on the basis that "stay put" is substantially likely
to result in injury to the student or to others, a district should make
every effort to reduce the risk that the student will cause injury. Such
efforts should, if appropriate, include the training of teachers and other
affected personnel, the use of behavior intervention strategies, and the
provision of appropriate special education and related services. Relying
upon the 8th Circuit Court of Appeals' recent decision in Light v
Parkway C-2 Sch Dist, 21 IDELR 933 (8th Cir, 1994), OSEP noted
that the burden would be on the district to demonstrate to a court that
such a removal or change in placement should occur to avoid injury.
Where a student with disabilities is suspended for more than ten school
days or expelled for misconduct that was not a manifestation of his/her
disability, a district under IDEA has a continuing obligation to provide
that student with alternative educational opportunities, i.e., "a
program of appropriate educational services that is individually designed
to meet his or her unique learning needs. Such services may be provided in
the home, in an alternative school, or in another setting." Such is
not true under Section 504 if nondisabled students in similar
circumstances do not continue to receive educational services.
The provision of the Gun-Free Schools Act allows an IEPC to place a
student with disabilities who brought a firearm to school in an interim
alternative educational setting for up to 45 calendar days, not
school days as previously thought.
IMPLICATIONS:
Probably the most notable clarification in the memorandum is that the
stay put provision does not apply in a situation where a student, not
previously eligible under IDEA, is alleged to be disabled after
disciplinary proceedings have been commenced. While a majority of judicial
decisions on this issue are in agreement with the interpretation of OSEP,
a couple of decisions ruled to the contrary (usually because the district
knew, or should have known, that the student was disabled). Absent this
latter situation, districts can now be more comfortable in not applying
the stay put when the issue of a student being disabled is first raised
while disciplinary proceedings are pending or have already been completed.
It continues to remain important that a district handle such a referral
with dispatch given the student is out of school.
There is an unfortunate textual contradiction in OSEP's treatment of
the Honig injunction. The text refers to a district making "every
effort" to reduce the risk that a student will cause injury. This is
in contrast to OSEP's footnote reference to Light v Parkway.
The footnote cites Parkway for the proposition that a district
must show it has made "reasonable efforts" to accommodate a
student's disabilities so as to minimize the
likelihood the student will injure himself/herself or others before seeking a Honig injunction. The "reasonable read" of OSEP's "every effort" language is that it was not meant to be taken literally. In seeking the injunction a district must be ready to propose to the court that placement which it believes is an appropriate alternative to the current placement where hopefully, and presumably, the district had made reasonable efforts to minimize injury. The Parkway standard is not really new, although the case is noteworthy for providing a good explanation of the district's burden of proof.
Third, the language in the interpretation regarding alternative
educational opportunities for a student with disabilities who is suspended
for more than ten days or expelled for conduct unrelated to his/her
disability provides a little more insight than in the past as to the
meaning of the requirement--but not much. While on the one hand it speaks
to the services needing to be "individually designed to meet his or
her unique learning needs" which might be quite substantial, on the
other hand, it said such services may be provided in the home, in an
alternative school or another setting which would tend to imply that such
services need not be substantially comparable to what the student would
receive as if in school. Obviously, more clarification would certainly be
helpful.
Return to the TOP
When a district changed from using a "blue bird coach," to
using a yellow school bus to transport a student each weekend to and from
a state school for the deaf, the student's mother requested a hearing.
Barry Sch Dist, 22 IDLER 473 (PA, 1985). Her sole contention was
that the yellow school bus and yellow school buses in general were unsafe
and the "blue bird coach" provided a safer and more comfortable
ride for her daughter. The new yellow school bus was equipped with air
conditioning, restroom, wheelchair lift, wheelchair brackets and lock,
individual seat belts, and AM/FM radio, two-way FM radio, cellular
telephone, and all the equipment required by state and/or federal laws.
The hearing officer found that it provided appropriate transportation for
the student.
IMPLICATIONS:
Absolutely none! But for all of those readers who have received requests for hearings for possibly unusual or way out reasons, this case ought to make you feel better!
OSEP CLARIFIES WHEN GOALS ARE
NEEDED FOR RELATED SERVICES
While there is no IDEA requirement that an IEP include separate
annual goals or short-term instructional objectives for related services,
the goals and objectives in the IEP must address all of the student's
identified needs that the IEP team has determined warrant the provision of
special education, related services, or supplementary aids and services,
and must enable the team to determine the effectiveness of each of those
services. Hayden, 22 IDELR 501 (OSEP, 1994). In so ruling, OSEP
noted the following.
The annual goals and short-term instructional objectives in an IEP must
provide a mechanism for determining whether the totality of services
provided pursuant to the student's IEP, including special education,
related services, and supplementary aids and services, is appropriate to
the student's unique needs. As an example, OSEP stated if the IEP team has
determined that a student needs speech and language therapy services, the
IEP must include goals and objectives that address the student's needs to
develop and/or improve communication related skills. It would not be
necessary, however, to label the goals and objectives as "speech
therapy" goals and objectives. Thus, if the IEP includes goals and
objectives which appropriately address the student's need to develop
communication-related skills, no additional or separate "therapy"
goals and objectives would be required.
OSEP also clarified whether goals and objectives were needed for
related services such as air conditioning, transportation, or
catheterization. It noted that if a related service such as air
conditioning is necessary to enable the student to attend school, that
service is not intended to increase the student's skills, and no goals or
objectives are necessary. It went on to state that similarly, if
transportation is being provided solely to enable the student to reach
school, no goals or objectives are needed. But, if instruction will be
provided to the student to enable the student to increase the student's
independence or improve the student's behavior/socialization while
traveling to school, then goals and objectives must be included to address
the need to increase independence or improve behavior or socialization.
IMPLICATIONS:
The goals and objectives for a student are of paramount importance for
they serve as the building block for the determination by the IEP
participants as to what programs and services are necessary to address the
student's needs. Regrettably, too often due to lack of time or lack of
knowledge, the goals and objectives as stated in the student's IEP are not
really reviewed from year to year, are vaguely worded in unmeasurable
terms, incomplete, or not coordinated among various service providers. It
would behoove many districts to provide staff conducting and participating
in IEPs with a "refresher" on the basics of developing goals and
objectives through a mini workshop or inservice. Reference might be made
to the booklet prepared by the Michigan Department of Education entitled "A
Resource Guide to Developing Annual Goals, Short-Term Instructional
Objectives and Performance Objectives," which is an excellent
resource in this regard.
Providers of specific related services frequently develop goals and objectives independently, resulting in redundant or uncoordinated goals and objectives for the student as a whole. And, there are occasions when goals and objectives are not developed for specific services or activities, which have instructional aspects, e.g., lunch. In keeping with the above ruling, any inservice or reminder to staff should touch upon these points as well.
Q Are Office of Special Education Program (OSEP) policy letters and
rulings binding upon school districts?
A No, not like IDEA or its regulations. However, it is customary for
the Michigan Department of Education, ISDs on compliance matters, and
hearing officers to give deferential consideration to such
interpretations, absent a very cogent reason to the contrary. Owens,
22 IDELR 642 (OSEP, 1994).