April 1997, Vol. 10, No. 8
An "Ounce of Prevention..." News
Information and Ideas from IPPSE for Practical Problem Solving in Special Education
YET ANOTHER CIRCUIT PROVIDES A NEW TEST
FOR SERVICES TO PRIVATE SCHOOL STUDENTS
The Tenth Circuit Court of Appeals in Fowler, et al v Unified Sch Dist, 25 IDELR 454 (10th Cir, 1997), has held that while districts have "considerable discretion" in providing services to students with disabilities parentally placed in private schools, that discretion has its parameters and is not unfettered. Finding that cost was a "highly relevant factor" in this regard (albeit not the only factor) it concludes that a district must pay the same amount towards related services for a private school student with disabilities (here a sign language interpreter) as the average amount the district pays for such services for hearing impaired students in the public schools. Noting that its rule is not mathematically precise, it gives districts very broad discretion to calculate the average using any rational basis, advising it will give substantial deference to its calculation. Lastly, it acknowledges its decision may have a "very short shelf life" given the U.S. Supreme Court's recent acceptance of petitions for certiorari in the Anderson and Russman cases which utilize different tests.
IMPLICATIONS:
With this decision in Fowler by the Tenth Circuit Court of Appeals, five different federal circuit courts of appeal have addressed the issue as to whether students with disabilities parentally placed in private schools have a "right of entitlement" to related services under IDEA or merely services which a given district in its discretion chooses to grant to any particular student in order to provide "comparable benefits" and a "genuine opportunity for equitable participation" per the applicable IDEA and EDGAR regulations.
Clearly, the Tenth Circuit, as did the courts in Russman and Cefalu struggled with how to make such services available to students parentally placed in private schools yet not thrust upon districts unlimited financial and logistical burdens. See regarding the Cefalu decision OP News, February 1997, Vol. 10, No. 6, p. 5; the
Russman decision, OP News, July 1996, Vol. 9, No. 11, p. 1; and the Anderson decision, OP News, May 1996, Vol. 9, No. 9, p. 3.
It is our understanding that despite this flurry of differing approaches in these opinions that the subject has still not come up at the meetings regarding the reauthorization of IDEA. Further, regrettably due to the timing of these cases in terms of when the U.S. Supreme Court decided to hear them, in all likelihood a decision will not be forthcoming until next fall at the earliest.
SIXTH CIRCUIT AFFIRMS HUDSON
Hudson, you will recall, is the case which arose out of Bloomfield Hills where both the local and state hearing officers as well as the federal district court ruled that placement of a middle school aged TMI student in a full-time inclusion program located in the neighborhood school was not required under either IDEA or Section 504. See OP News, February 1996, Vol. 9, No. 6.
On March 13, 1997, the Sixth Circuit, in a very short opinion, totally upheld the district court's reasoning and conclusions. Hudson v Bloomfield Hills, 25 IDELR _____ (US DC MI, 1997). In doing so, the Sixth Circuit rejected the parent's contention that the burden of proof should have been shifted to the district. It also rejected the parent's argument that both hearing officers and the district court erred by deciding what they believed was "best" for the child rather than determining whether the child could "satisfactorily" achieve her IEP goals when "included." It adopted the district court's decision, including its reasoning.
You will recall that in that decision the district court held that placement in the neighborhood school was not mandated but merely one factor to be considered in meeting IDEA's LRE requirements. The lower court, in applying the LRE test of the Sixth Circuit set forth in Roncker v Walter, found that the benefits of the
special education classroom proposed in the IEP outweighed the benefits of the inclusive education program sought by the parents, particularly given what the court found to be the prohibitive costs of attempting to duplicate the special education services at the neighborhood school.
IMPLICATIONS:
Those implications discussed in the prior OP News regarding the lower court decision (noted above) continue to be true. In short, because placement of a child at the neighborhood school remains a preference, a district must have good, legitimate reasons for rebutting the preference, e.g., when the student's needs require a special education teacher's expertise, the type of impairment is low incidence, the array of support services is great, and the cost of providing/duplicating services of the "centralized" program is great. Further, the Sixth Circuit is sticking by its Roncker test, rejecting another invitation to utilize other slightly different LRE tests developed by other federal circuit courts of appeal, e.g., in Daniel R, Holland, etc. Finally, this case, like practically every other regarding LRE is fact specific and, therefore, has little, if any, "precedential" value or implications. But, the Sixth Circuit's reaffirmance of the above principles is important. RETURN TO THE TOP
VIRGINIA FINALLY WINS! FOURTH CIRCUIT
RULES EDUCATIONAL SERVICES
NOT REQUIRED AFTER EXPULSION FOR
BEHAVIORS UNRELATED TO
DISABILITY
The Fourth Circuit Court of Appeals, sitting en banc (the full bench), recently ruled that a school district is not required to provide "alternative educational services" to students who are suspended or expelled for behaviors which are unrelated to their disability. Virginia Dept of Ed v Riley, 25 IDELR 309 (4th Cir, 1997).
As you may recall, the state of Virginia and the U.S. Department of Education have been doing battle due to Virginia's refusal to provide educational services to students with disabilities properly expelled or suspended for reasons unrelated to their disabilities. The U.S. Department of Education initiated the hearing procedure in an attempt to withhold Virginia's funding. The hearing officer ruled in favor of the Department of Education, finding that a state is required to provide educational services to students who have disabilities, notwithstanding their being expelled for behavior unrelated to their disability. The matter was then "appealed" to the Secretary of Education, who upheld the hearing officer's decision finding that Virginia's entire Part B funding grant (60 million dollars) could be withheld if Virginia did not "come into compliance" with its disciplinary policy.
The state of Virginia then appealed the secretary's decision to the Fourth Circuit. The Fourth Circuit Court of Appeals initially upheld the Department of Education's interpretation that the IDEA required continued educational services for students with disabilities who are properly expelled or long-term suspended for reasons unrelated to that disability. The Fourth Circuit also found that the Department of Education had the ability to withhold special education funding from the state if it refused to comply with that "disciplinary policy." The state of Virginia then petitioned the Fourth Circuit for a rehearing en banc (a hearing before the entire court rather than just the customary three-judge panel of the court). That request was granted.
On rehearing, the entire bench reviewed the matter and reversed the majority decision of the previous panel. Instead, the full circuit court adopted the dissenting opinion of Circuit Judge Luttig finding that the IDEA did not require continued services when a student is expelled for behaviors not related to his or her disability.
IMPLICATIONS:
The Riley case has been up and down the appellate ladder for years. The issue of continued post-expulsion services has caused confusion in the courts and for school districts alike. At least one other federal district court has found that post-expulsion services are not required for students expelled due to behaviors unrelated to their disability. See Doe v Bd of Ed of Oak Park & Forest River High School, 23 IDELR 871 (ND Ill, 1996) [OP News, August 1996, Vol 9, No 12].
But, the decision in Riley does not immediately and directly affect us in Michigan. School districts here must continue to provide alternative educational services to students with disabilities who are suspended long term or expelled, even though the conduct is found unrelated to the disability, inasmuch as our Sixth Circuit Court of Appeals in Kaelin v Grubbs, EHLR 554:115 (6th Cir, 1982), has so ruled.
Despite not affecting us directly now, the Riley decision could bring about a change in the law on this point in two ways. First, there is no doubt the Riley case will be appealed to the United States Supreme Court. The only question is whether the Court will take the case or not, but it might given there certainly now is a split among the various circuit courts on the issue.
Second, as we are all well aware, discussions in Congress regarding the reauthorization of IDEA continue. The discipline of students with disabilities, both last year and this year, was one of the most controversial topics in those discussions. When the Riley decision came down, it only added "fuel to the fire," but it may cause the issue to be addressed one way or the other when IDEA is reauthorized. RETURN TO THT TOP
CONFLICTING DECISION ON SERVICES
TO MEDICALLY FRAGILE
In a somewhat unusual move, the Eighth Circuit Court of Appeals recently ruled in Cedar Rapids Comm Sch Dist v Garrett F, 25 IDELR 439 (8th Cir, 1997), that under IDEA a district is required to provide any medically related services to a student with disabilities if 1) these services are required to enable the student to benefit from special education (which typically would mean be in school during the day) and 2) they can be provided in the school setting by a non-physician (i.e., nurse or qualified lay person). This court found that such a "bright line" test is set forth in the U.S. Supreme Court's decision in Irving Indept Sch Dist v Tatro, and says it is bound to that test whether it agrees with it or not.
Other circuit courts of appeal, most notably Detsel v Bd of Ed of Auburn Enlarged City Sch Dist, EHLR 558:395 (2d Cir, 1987) and Neely v Rutherford County Sch, 23 IDELR 334 (6th Cir, 1995), have found, relying upon other comments in the Tatro decision, that Congress did not intend under IDEA that districts had to provide certain "medical" type services when these services were invasive, continuous/intensive, or required a high level of expertise to administer beyond that of the customary school nurse. The Eighth Circuit specifically rejected this latter approach which has often been called the "rule of reasonableness." See OP News May 1996, Vol. 9, No. 9, at p. 2, regarding the U.S. Supreme Court refusing to hear the parent's appeal of the decision in Neely.
IMPLICATIONS:
The vast majority of decisions, including that in Neely by our own Sixth Circuit which is binding upon us in Michigan, do not use the "bright line" test which the Eighth Circuit applied in this case so as to require districts to provide extensive "medical" services to students with disabilities. While the U.S. Supreme Court previously refused to hear this issue in Neely, now there is an unmistakable conflict between the federal circuit courts. Moreover, the Eighth Circuit's decision here in Cedar Rapids flies squarely in the face of OSEP's recent interpretation which basically provides that school districts should follow the "rule of reasonableness" test of Detsel and Neely. Letter to Anderson, 24 IDELR 180 (OSEP, 1996). The Eighth Circuit in its decision fails to make any mention of this interpretation.
Bottom line, this decision might prompt the U.S. Supreme Court to now hear the case given the conflict between the circuits. OP News will keep you advised but in the meantime, we in Michigan follow Neely and the "rule of reasonableness."
THIS MONTH'S Q & A
Q Where a district has determined that a student is disabled under IDEA and developed an IEP in accordance with IDEA, can the parent reject the IEP and try to compel the district to develop a 504 plan?
A No. In Letter to McKethan, 25 IDELR 295 (OCR 1996), OCR stated that there are really two groups of students eligible under 504. The first group are those students who qualify under Section 504 and additionally are eligible for services under one of IDEA's disability categories. The second group are students who qualify under 504 but not under IDEA.
With regard to the first group (i.e., eligible under both 504 as well as IDEA), the development and implementation of an IEP in accordance with IDEA will meet 504 requirements. Thus, if a parent rejects such an IEP and the programs and services provided under it, the parent is essentially rejecting what would be offered under Section 504! Therefore, the parent could not compel the district in such circumstances to develop what in effect would be an "IEP under Section 504" since the district had already done so pursuant to IDEA requirements.
As a practical matter, it hardly seems worth it to get in a "fight" with a parent over whether programs and services (assuming they are actually agreed upon) should be provided to the student under IDEA or Section 504. Granted, if it is done under 504, some IDEA monies are lost, but the planning process under 504 can be simpler if the district desires (i.e., it need not be in accordance with IDEA's requirements regarding an IEPC and IEP). But beware the downsides in the event of future disputes. For example, if the parent later seeks anything available only under IDEA (e.g., alternative educational opportunities after expulsion) the district (and parent) may need to go back under IDEA.
COURT ENFORCES ORAL
SETTLEMENT AGREEMENT
Where a parent and the district had a dispute which had reached federal court and then orally reached a settlement agreement, but the parent refused to sign the agreement, the court ordered that the settlement agreement be enforced and awarded the district attorney's fees. Kreher v Orlings Parish Sch Bd, 25 IDELR 40 (USDC La, 1996). In doing so, the court noted that it is well settled that a federal court that maintains jurisdiction over a settled action possesses the inherent power to enforce agreements entered into in settlement of the litigation pending before it. After the parties reached agreement on the terms of the settlement before the court, the district's attorney reduced them to writing. The parent not only refused to
(See COURT ENFORCES, p. 6)
COURT ENFORCES (contd. from p. 5)
sign the settlement agreement, even though it correctly reflected the terms previously agreed upon, but wanted to add additional terms. The district, believing it had a settlement agreement requested the court to enforce it and the court did.
IMPLICATIONS:
Rarely as a practical matter do many cases get to court and are then settled. But, many times cases are settled after the parent requests a due process hearing and regrettably there have been more than a few occasions where a parent after agreeing to terms of settlement has refused to sign the written document or desired additional changes. This decision we believe would be authority for a school district in such circumstances to request a hearing officer to enforce a settlement agreement even though the parent refuses to sign the written document or now seeks to change some terms. Of course, the parent could use this case as authority to do the same thing should any district have second thoughts regarding the settlement agreement to which it had verbally agreed. Whether a hearing officer could grant attorney's fees would be arguable and probably dependent upon the actual costs which the district did incur in enforcing the agreement, the reasons the parents refused to sign (or wanted to change the terms), etc. But it's "good news" to hear that when a matter is "settled" you can make it stick!
IPPSE:
Institute for Problem Prevention
in Special Education
2143 Commons Parkway
Okemos, MI 48864-3987
