April 1999 ~ Volume 12, Issue 8

Ounce of Prevention News

Information and Ideas for Practical Problem Solving in Special Education

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In this Issue:

Having the Characteristics of a Disability Does Not Automatically Make a Student Eligible Under IDEA, Ninth Circuit Rules ...........................................................................................1

District Must Consider All of Student’s Behaviors ........................... .....................................1

Attorney General Issues Opinion on Do-Not-Resuscitate Orders ..........................................2

Attorney General Issues Opinion on Scope of Auxiliary Services .........................................4

Having The Characteristics of a Disability Does Not Automatically Make a Student Eligible Under IDEA, Ninth Circuit Rules

Proof of severe discrepancy between ability and achievement by itself does not make a student eligible for special education as a learning disabled student, the Ninth Circuit ruled inNorton v Oneida Union School District, 29 IDELR 1068 (9th Cir, 1999).

In 1994, when the student was in fifth grade, the school district evaluated him and determined he was not eligible for special education because any learning disability he might have did not interfere with his performance in a regular classroom. The district did modify his regular education program to include preferential seating, use of a word processor, handwriting assistance and other assistance.

Later that year, based on private assessments obtained by the parents, the district agreed that the student had ADD but again found him ineligible for special education.

The parents requested a due process hearing. The hearing officer found that evidence of a severe discrepancy was inconclusive but that, even if he had a severe discrepancy, he did not qualify for special education because his needs were met in the regular education program with modifications. The district court affirmed.

On appeal to the Ninth Circuit, the parents contended that the student was eligible under IDEA because he had a severe discrepancy between ability and achievement. Citing the state law definition of "specific learning disability" which required a showing both (1) that the student exhibits a severe discrepancy between ability and achievement in one or more specified academic areas caused by a psychological processing disorder and (2) that the impairment requires instruction, services, or both which cannot be provided with modification of the regular school program, the Court rejected this claim. The Ninth Circuit held that the parents had failed to show that the student was not benefiting from his regular classroom environment. The Court thus concluded that he was ineligible under IDEA even if a severe discrepancy was shown.

The Court also held that the district court properly excluded evidence of a subsequent evaluation. Following a further psychological assessment in December, 1995, the school district did find the student eligible under IDEA. The Ninth Circuit held, however, that evidence of subsequent eligibility had no bearing on his eligibility in 1994.

Implications:

Although the Court decided the case under a California state standard, both the IDEA and Michigan state standards are essentially the same. To be eligible under IDEA, a student with a specific learning disability must have a severe discrepancy between achievement and ability and "by reason thereof need special education and related services." Similarly, under Michigan administrative rules, to be eligible as a student with a specific learning disability, a student must have a severe discrepancy that "necessitates special education or ancillary and other related services, or both." Thus, clearly, demonstration of a severe discrepancy by itself does not make a student eligible for special education.

The rationale of this decision is also applicable to other disability categories. The final regulations add ADD and ADHD as conditions that could constitute an "other health impairment." A demonstration that a given student's ADD or ADHD satisfies the OHI criteria does not automatically make him IDEA eligible. There must also be a showing that, by reason of the disability, the student needs special education and related services.

The Court's evidentiary ruling is also important. IEP decisions are based on the then-available information. If proper evaluations have been done and input received from the parents and staff, hearing officers and courts should not "second-guess" those decisions based on subsequent information and developments that were not available to the IEP team at the time of their decision.

District Must Consider All of Student's Behaviors

A federal district court in Massachusetts affirmed a state hearing officer's decision requiring a school district to fund a residential placement. In doing so, the court noted that a district is required to consider all of a student's behavior, including out-of-school behavior, if it is necessary in order for the student to benefit from his education. Mohawk Trail Regional Sch. Dist. v Shaun D., 29 IDELR 885 (DC MA 1999).

At the age of eight, Shaun D. was removed from his parents by the Department of Social Services for abuse and neglect. In the summer before starting high school (1993), he was placed with an adoptive family and became a resident in the Mohawk Trail Regional School District. Over the years, Shaun had been diagnosed with mental impairment, head trauma, disthymic disorder, pedophilia, static encephalopathy, obsessive-compulsive disorder and suspected fetal alcohol syndrome and placed in various self-contained special education classroom settings. The initial Mohawk School District IEP placed Shaun in a "substantially separate program" at the Regional High School, consistent with a March 1993 neuropsychological evaluation that recommended placement in a self-contained special education program combining academic and prevocational emphases. The IEP also included speech, language, counseling and special transportation services.

In 1994, Shaun inappropriately touched another student who was confined to a wheelchair. The IEP was modified and Shaun began private counseling with a focus on sex and health.

In June 1995, the parents obtained a private evaluation. The resulting report noted that Shaun had made significant progress academically and in adapting to living with his adoptive parents, and that were it nor for sexual difficulties, the parents viewed him as having no significant problem. Given his significant sexual disorder, however, the report recommended residential placement until the pedophilia was brought under control.

Based on continued school progress, in September, 1995, the district sent a letter to the parent explaining that they would begin mainstreaming Shaun. Later in September, Shaun was hospitalized by his parents. After his discharge, the student was placed in a community-based treatment program for "sexually deviant youth." Notwithstanding the deterioration of the Shaun's out-of-school behavior, he continued to make progress in school and demonstrated growth in appropriate peer relations. Due to a petition filed by the adoptive parents, the Department of Social Services initiated a placement at the Brightside Acute Residential Treatment Center. DSS later placed Shaun at the Whitney Academy, which is a program for mentally impaired students who have sexually offending behaviors. The district had no knowledge or participation in the placement of the student at Whitney.

After a ten month lapse in Shaun's attending the district high school, the district reconvened the IEP team in the fall of 1996. Whitney's program director was invited to the team meetings, but did not attend. The IEP deleted a number of goals relating to social, emotional and behavior problems based on Shaun's growth in these areas while still enrolled in the district. The IEP proposed a district special education classroom with related services including speech, language, occupational therapy, health education and a one-on-one aide. The parents disagreed with the IEP, requested a due process hearing, and sought funding of the Whitney placement.

The hearing officer found that the IEP failed to make appropriate provisions for services to address the student's sexually acting-out behavior. As such, it was not reasonably calculated to provide for the student's maximum possible educational development. ⁽¹⁾ The hearing officer went on to find that Whitney's educational plan was able to address the student's sexually acting-out behavior and further offered academic supports equivalent to those in the local district. As such, the hearing officer concluded that the district was responsible for the student's residential placement. The district appealed to federal court.

The federal court found that the student presented a unique case, and that his out-of-school behavior was not only related to various disabilities but was inextricably intertwined with his educational performance. The court rejected the district's argument that the student had made academic and vocational progress, as well as behavioral progress in school, and criticized the district for deleting many of Shaun's social, emotional and behavioral goals on the basis of what in essence was outdated present level of performance information. The district claimed that the student's out-of-school behavior was not something they were required to address, and that the student did not need a residential program in order to achieve educational benefit. The court noted that education is broader than merely academics. The district also argued that the placement at the Whitney program amounted to psychiatric treatment and therefore fell within the medical exclusions provision of the IDEA. After weighing a number of factors, the court concluded that the placement was not merely medical. Instead, the student's needs were so intertwined that the student required a residential treatment program in order to address all of his disabilities.

Implications:

Addressing behavioral issues in the school setting poses many challenges for school districts. This case illustrates a court taking a broad view of a district's responsibility in addressing a student's behavior and reminds us that: 1) districts must consider not only "containment" of negative school behavior, but steps to teach and/or facilitate learning of problem solving, pro-social skills. 2) IEP development and modification should be premised on present levels of performance, and if the student is in a non-district setting prior to the IEP, best practice would suggest obtaining as much information as possible regarding the student's performance in that setting prior to the IEP, rather than relying on an invitee from that setting actually showing up at the IEP and providing the information at that point. 3) A district must consider the impact of out-of-school behaviors on the ability of a student to benefit from their educational program, understanding that the educational program is defined more broadly than "academics."

The case should not be read to require a district to address all out of school behavior which does not affect the student's educational program. The court rejected the parents' premise that educational goals must enable a student to generalize what he learns at school to the community. In this regard, the court also noted:

Special education laws are not designed to cure all of society's ills; nor do they mandate that schools solve all ailments which, unfortunately, inflict our children. As the First Circuit recognized over fifteen years ago, in passing the IDEA, then known as the All Handicapped Children Act, 'Congress did not intend to burden local school committees with providing all social services to all handicapped children.' Abrahamson v Hershmann, 701 F2d 223, 228 (1st Cir 1983).

This balance/tension between a district's special education responsibilities and parental or community responsibilities is reflected in the IDEA regulations. See, for example, the regulation for "social work services in schools" at 34 CFR 300.24(b)(13). The regulation defines this service to include "working in partnership with parents and others in those problems in a child's living situation (home, school, and community) that affect the child's adjustment in school;" and "mobilizing school and community resources to enable the child to learn as effectively as possible in his or her educational program."

The IDEA regulations require that the IEP team consider behavior that impedes a student's learning. The analysis and comments accompanying the final IDEA-97 regulations indicate that OSEP was requested, but declined, to include a reulatory clarification that IEP teams must consider both in and out of school behavior. Instead, OSEP indicated that this was best left to a case-by-case analysis.

1. Massachusetts state law imposes a "higher standard" than the federal law. It is similar to Michigan's Maximum Potential standard.

Attorney General Issues Opinion on Do-Not-Resuscitate Orders

You may have heard that the Attorney General recently issued an Opinion (No. 7009) regarding the Michigan Do-Not-Resuscitate Procedure Act. Since Michigan school districts have a number of medically fragile students under do-not-resuscitate (DNR) orders, the question arises as to what, if any, implications this Opinion has for your district. The short answer is that this Opinion should not affect your response to such orders.

The Act establishes a procedure for the execution of DNR orders by persons 18 years of age or older or patient advocates on their behalf and requires these orders to be in settings outside of hospitals, nursing homes and mental health facilities. The Opinion addressed the question of whether the Act authorizes a DNR order to be executed by a person under 18 years of age or a patient advocate on his or her behalf. The Opinion does not address what rights a parent or child might have apart from those conferred by the Act.

The Opinion concluded that the Act does not authorize a person under 18 years of age to execute a do-not-resuscitate (DNR) order, nor does the act authorize a patient advocate to execute a DNR order for a person under 18. The Opinion is limited, however, and only interprets the Act. The Act itself provides, in section 16 (MCL 333.1066), that it is cumulative and does not impair or supersede a legal right that a parent or guardian may have to consent to or refuse medical treatment on behalf of another.

Parents and guardians have a legal right to refuse medical treatment for their minor children that includes executing DNR orders. This Opinion does not affect that right. Courts have upheld parental decisions to withhold treatment, except when they have concluded that the decision is not in the best interests of the child. Consequently, school districts should honor DNR orders unless they believe an order is not in the child's best interest and are prepared to petition for judicial review of the DNR order.

Students 18 years of age or older may, but are not required to, use the Act's procedures. A district should honor a DNR order executed by an adult student or his or her patient advocate regardless of whether it complies with the Act but, if the DNR order does comply with the Act, the district must honor it unless the district is prepared to petition for judicial review of the order.

Attorney General Issues Opinion on Scope of Auxiliary Services

The Attorney General issued on Opinion (No. 7014) on April 9, 1999, addressing the scope of the auxiliary services that school districts are required to provide to eligible special education students attending nonpublic schools. The Auxiliary Services Act (ASA) (MCL 380.1296) requires districts to provide speech and language services, school social work and school psychological services, teacher consultant services, and "other ancillary services for the handicapped."

The administrative rules implementing the ASA (R340.291-340.295), which have not been amended since they were originally promulgated in 1965, list only the services specifically set forth in the Act and do not list any "other ancillary services." That phrase was added to the Act when it was recodified in 1976 as part of the School Code of 1976.

The Opinion concludes that, in adding this phrase, the Legislature intended to incorporate the special education administrative rule defining "ancillary services" into the Act. The Opinion thus rules that auxiliary services now include those services set forth in current special education administrative rule R340.1701(c), defining "ancillary and other related services" and are not limited to those services set forth in the Act.