June 1999 ~ Volume 12, Issue 10

Ounce of Prevention News

Information and Ideas for Practical Problem Solving in Special Education

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In This Issue:

1.  State Review Officer Reverses Lower Hearing Officer on Private School Tuition Costs

2.  A Federal District Court Rules That Parents Who Successfully File Administrative Complaints May Not Recover Attorney Fees

4. Q&A   IDEA 97 ... regular classes?

State Review Officer Reverses Lower Hearing Officer on Private School Tuition Costs

A state review officer recently reversed the lower hearing officer's findings that a school district was required to reimburse parents for the cost of a private, out-of-state, residential placement. Birmingham Public Schools, ___ IDELR ____ (SEA MI 1999).

The local hearing officer decision was recently summarized in an article in the March issue of OP News. [Volume 12, Issue 7]. The student had attended nearly all of his educational career in private schools. He had also been hospitalized for psychiatric reasons, primarily stemming from conflict with his parents at home, on several occasions. Academically, the student had always achieved A's and B's. At the beginning of the 1997-98 school year, the parents enrolled the student in Birmingham Public Schools. The student was "enrolled" in BPS for a total of 44 days, in which he only attended 2 ½ days. The local hearing officer found that the school district had failed to provide appropriate notice of procedural safeguards, failed to hold an assessment IEP, failed to complete an evaluation in a timely manner, and failed to create an IEP which conformed with the requirements of § 1414(d) of IDEA-97. As such, the local hearing officer found significant procedural violations, and ordered BPS to fund the unilateral out-of-state residential placement.

On appeal, the state review officer decision summarizes many facts and information which were omitted or not considered by the local hearing officer. The state review officer noted that the parents, at the time of enrollment, withheld significant and pertinent information from the school district, including the fact that the student had attended private schools, prior psychiatric hospitalizations and the significant conflicts occurring at home. Through the course of the first few weeks in attempting to encourage the student to attend school, the school district offered support services, including special education services. The parents flatly refused any consideration of special education believing that it would impair the student's self-esteem. After refusing special education, the student was again hospitalized. Based on the escalating conflicts and aggression occurring in the home, the student's psychiatrist recommended a residential facility.

The parents contacted the school district and alluded to their search for a residential program. However, the parents did not request special education services or make a referral at that time. Instead, the student was unilaterally placed in a residential program within 3 days following his discharge from the psychiatric hospital, and without notice to the district. After making the unilateral placement, the parents contacted the school district. The parents' reason for contacting the district was not to request a referral for special education, but rather only to request financial assistance in paying for the program. The district informed the parents that the special education process needed to be initiated, obtained consent to evaluate the student as well as information on prior school attendance, releases for records and provided the parents notice of their procedural safeguards at that time.

In reviewing the local hearing officer's findings of fact and credibility issues regarding witnesses, the state review officer gave greater weight to school district testimony regarding events surrounding the enrollment of the student rather than the parent. The state review officer found that a review of the transcripts indicated the school district employees testified relative to contemporaneously made notes of the various meetings. On the other hand, the parent had not made contemporaneous notes, and only in hindsight had prepared a summary of her recollection of such meetings. In some cases, the parent indicated an inability to recall conversations.

In turning to issues of law concerning the alleged "procedural violations," the SRO found that the local hearing officer erred in a number of ways. First, the SRO found that an "evaluation IEP" was not required to be held. Quoting the language from IDEA-97, the SRO indicated that the statute does not mention a "meeting" but rather identifies a number of items which the IEP team must consider, including parental input. The SRO found that the district had met with the parents and obtained input, as well as reviewed evaluation and medical data from outside sources. There were no prior school district evaluations to review. Based upon this, the district initiated an evaluation pursuant to the rules, considering and utilizing both a psychologist and a social worker. Since the statute did not require a meeting, the SRO found that the hearing officer erred in requiring such a meeting.

Similarly, the SRO found that the hearing officer erred in his determinations that the IEP created by the district was required to comply with the mandates of § 1414(d) dealing with IEP content. The local hearing officer held that the district must have an IEP in place which complied with IDEA-97 requirements notwithstanding the fact that the plain language of the statute indicated that the section was not effective until July 1, 1998. Since the district's IEP was created in May, 1998, the SRO found that the local hearing officer erred. The SRO also pointed out that this was supported by OSEP's own interpretation, as well as the recently published regulations.

With regard to Child Find concerns and whether the district should have known the student needed a special education evaluation, the SRO found that the failure of the parents to provide critical information, including withholding information relative to prior school and psychiatric hospitalizations, gave the district no reason to believe that an evaluation was necessary. Upon being presented with such information, the district immediately provided notice of procedural safeguards and initiated the evaluation process. Although there was substantial delay in completing the evaluation, such delay was not attributable to the district (or the parents) and was out of either party's control. As such, the delay was determined not to be a fatal procedural violation.

In looking at the substance of the IEP, the SRO determined that the functional behavioral assessment and behavior intervention plan did not need to be completed at the time of the IEP, nor included in the text of the IEP. Since the district had little experience with the student, and essentially no anecdotal records to review, a functional behavioral assessment could not be properly completed. Indeed, the SRO agreed with the district that the participation of the student in devising the behavior intervention plan was appropriate. Since the IEP indicated that a functional behavioral assessment and a behavior intervention plan, including a crisis intervention plan, would be prepared, the IEP was found not to be defective.

As for tuition, the SRO found that the local hearing officer erred in finding that the parent had met the requirements of the Burlington/Carter test. The SRO noted that Burlington permits a parent to unilaterally make a change in placement, although at their peril, if they disagree with an IEP created by the school district. In the present case, the SRO found that the parents had failed to meet the first prong of the Burlington test, in that there was no IEP which was being disputed. In fact, the parents had unilaterally placed the student at the residential facility prior to initiating the special education process. Therefore, the SRO found that the alleged failures of the district did not "cause" the private placement. Turning to the second prong under Carter, the SRO found that the placement at Grove was not "appropriate" and therefore, the parents were not entitled to reimbursement.

Implications:

The SRO's decision portrays a classic situation where the parents of a student "sandbag" a school district. Here the parents 

withheld critical information from Respondent at the time of the student's enrollment in August 1997, and vehemently rejected not only a special education referral, but also a learning resource center open to any student.

SRO decision at pp 40.

Only after refusing such services and making a unilateral placement for reasons other than educational purposes (escalating conflicts and aggression in the home setting), the parent then seeks funding for that placement. Critical in the SRO's decision is the issue of causation. Even assuming, for the sake of argument, the legitimacy of the alleged procedural deficits, the SRO found that these deficits, were not the "cause" of the parents' placement. Indeed, all of the medical and psychiatric records indicate that the placement resulted from conflict between the student and his parents at home, not his educational needs.

Important in the SRO's decision is the fact that a meeting is not required to conduct evaluation planning. Indeed, the language of IDEA-97 and the regulations merely require the IEP team to do certain tasks. The Michigan Department of Education has taken the position that while it may be best practice, a meeting is not required for the purposes of evaluation planning. It may be that a meeting is the "best practice" to accomplish these tasks, however, it is not required. However, if a meeting is held, the parents must be invited.

Similarly, it is important to note that the SRO determined that IEPs created prior to July 1, 1998, need not comply with the requirements of §1414(d). This is essentially a moot issue at this point since all IEPs are now required to comply with these sections. However, it is important to note that a functional behavioral assessment and the behavior intervention plan need not be created at the time of the IEP. Given the specific facts in this situation, it would have been nearly impossible to comply with this aspect of the local hearing officer's decision since the student had only been in attendance at school for 2 ½ days.

It is important that when new students enroll, or there is any indication that a current student has had psychiatric or residential placement, that district personnel immediately notify the special education director. A review of the student's file (if available) and examination of academic and behavioral data should be the first order of business. If there is reason to suspect a disability, prompt evaluation and, if appropriate, the creation of an IEP which provides a FAPE will protect the district from liability for any subsequent unilateral placement. A red flag should be raised any time a parent raises concerns over the student's behavior, yet vehemently refuses special education intervention. A district needs to take special care in complying with IDEA to assure that they are not "sandbagged." In this case, the district was ultimately vindicated and found not to have committed procedural violations. Compliance with IDEA requirements is tricky to begin with and a "mine field" when parents misrepresent or withhold information.June 1999



A Federal District Court Rules That Parents Who Successfully File Administrative Complaints May Not Recover Attorney Fees

Attorney fees are not recoverable by parents who prevail in the state complaint process, a federal district court has ruled in Megan C v Independent Sch Dist No. 625, (D Minn, 1999).

The parents' attorney sent a letter to the district demanding compensatory education and damages for an alleged failure to provide the student with FAPE over a four-year period. Several months later, he filed a complaint with the state department setting forth his allegations. In due course, the state department issued its report and found the district in violation for failing to timely identify the student as having a disability, failing to assess her transition needs or give her or her parent notice that transition would be discussed at an IEP, failing to have an IEP in place at the beginning of a school year, failing to invite all of the required IEP team members to the subsequent IEP and delaying the implementation of the IEP and not specifying the amount of service she was to receive. The department ordered as corrective action that the district conduct a comprehensive assessment and convene an IEP team to develop a current IEP based on the assessment and to consider the need for compensatory education. The department further ordered that it would retain jurisdiction in case the parties could not agree to an IEP.

An IEP was developed to address the student's current programming needs but the parent and student rejected it. No proposal for compensatory education was developed. The parents' attorney then sent the district a letter requesting the district pay for four years of college as compensatory education. Not surprisingly, the district did not accept this proposal. It received nothing further.

New counsel for the parent then submitted a toned-down request for compensatory education to the state department. The district never saw this request. The department ordered compensatory education of counseling services one time a week, tutoring services of ten hours a week, provision of a note taker for her college courses and continued use of a district-owned computer and software-all to be provided for two years. In addition, the department ordered that the goals and objectives and transition plan in the IEP be revised. The parent and student then filed a petition in federal court seeking attorney fees.

Attorney fees are authorized by § 1415(i)(3)(B) of IDEA (the procedural safeguards section) and may be awarded to a parent who prevails "in any action or proceeding brought under this section." The actions and proceedings provided for in § 1415 are administrative due process hearings, state reviews, and lawsuits seeking judicial review of those administrative decisions.

The statutory authority for the complaint process is not even in IDEA but rather in the Elementary and Secondary Education Act of 1965, 20 USC § 2831(a), and the implementing IDEA regulations are not in the procedural safeguards provisions but instead in the state administration provisions.

The district court denied the petition for attorney fees, finding that a complaint brought under the state's complaint resolution process is not an action or proceeding under § 1415. One pre-IDEA-97 case had awarded attorney fees for a complaint on the basis that § 1415 at that time provided that the procedures required by the section "shall include, but shall not be limited to" due process hearings and reviews and thus could be read to also include the state complaint process and also because courts had awarded fees for mediation. The court rejected this decision because the 1997 amendment to § 1415 repealed the phrase "but shall not be limited to" and specifically included mediation in the procedural safeguards and the court found that mediation had always been considered an optional part of the procedural safeguards.

The district court also denied attorney fees for two additional reasons. Generally, attorney fees can be awarded for state administrative proceedings only when their use is mandated as part of the remedy by the federal statute. Use of the state's complaint process is, of course, not mandated by IDEA. Secondly, the court found that the complaint process was intended to be an "economical and non-adversarial" alternative to due process hearings but districts would insist on due process hearings where they could better defend themselves if they were exposed to attorney fees for complaints.

Implications:

This is the first post-IDEA-97 decision to be reported on the question of whether attorney fees can be awarded for complaints filed under the state's complaint process. In this case, the parent and student probably in fact obtained relief at least as favorable as they would have obtained in a due process hearing. Thus, on the facts they had a strong argument for considering this an equivalent proceeding for which they should be able to recover attorney fees.

The court's decision, however, on the law is a very strong and well-reasoned opinion that other courts are likely to find persuasive. Some parent attorneys routinely file lengthy Part 8 complaints as well as requests for due process hearings. Whether this decision will affect that practice remains to be seen.



Drug Prevention Not an IDEA Support Service

A federal district court from the eastern district of California recently ruled that drug prevention was not an IDEA support service. Armstrong v Alicante Sch, 30 IDELR 251 (ED CA 1999).

According to the court's opinion, a student with an emotional impairment and other developmental disabilities filed a lawsuit against a school claiming that the school failed to provide him a FAPE by its "tolerance" of illegal drugs. Alicante School is a private school under contract with the Grant Union School District, and provides educational services to individuals with behavioral, emotional, learning and developmental disabilities. The student was placed at Alicante from 1991 through 1996. He was provided a program in accordance with his IEP. During his attendance at Alicante, the student obtained (apparently from other students at the school) and ingested PCP. As a result, the student was ultimately placed in a residential care facility. The student filed suit claiming that he was denied FAPE and that the school's negligent or deliberate tolerance of illegal drugs on its campus resulted in the student ingesting the drugs which resulted in his placement in a residential facility, thereby denying him the ability to live at home. The student argued that the school district should have provided "drug prevention" as a support service under the IDEA.

The court rejected the student's argument, finding that "drug prevention" was not an IDEA support service. In examining the Rowley test to determine if the student had been provided a FAPE, the court noted that a program must address the child's unique needs, provide adequate support services to enable the student to take advantage of the educational opportunities, and must be in accordance with the IEP. There was no dispute that the IEP addressed the student's unique needs and that the program was provided in accordance with the IEP. In looking to whether or not the school provided adequate support services, the court noted that the definition of related services did not include such things as "drug prevention." The question was whether or not drug prevention is the type of "supportive service" contemplated by Congress under the IDEA. Although drug use may impede a student's ability to take advantage of educational opportunities, the court found that, in enacting the IDEA, "Congress did not intend to create a federal claim for every activity or type of conduct which may impede an individual's ability to take advantage of the educational opportunities." The court went on to state:

...[T]he prevention of drug use is not inextricably intertwined with the provision of an appropriate public education as required under the IDEA. ... Understandably, drug prevention is being deployed as an everyday strategy in many educational settings. The IDEA, however, compels no response to the problem of drug use in schools. Therefore, the failure to implement such a strategy does not give rise to a claim under the IDEA.

After finding the student did not have a claim under the IDEA, the court went on to address the student's claims under § 1983, the ADA and state law. As to the ADA and § 1983 claims, the court found insufficient facts to support a claim, and they were dismissed. The court refused to exercise jurisdiction over state claims, since all federal claims had been dismissed.

Implications:

Drug use is clearly a problem in our public schools today. When a student with a disability engages in the use of illegal drugs, it is not uncommon to have parents and advocates seeking to have the school district address illegal drug use as an IEP item. While this case should not be read as standing for the proposition that drug education can never be an educational need for a student, it does make clear that drug intervention and prevention is not a related service or support service under the IDEA.

Remember that the current use of illegal drugs is not a disabling condition either under § 504 or the IDEA. This area becomes difficult, however, where a student claims that the use of illegal drugs is somehow a manifestation of another disability. In such an instance, the IEP Team will need to ferret out whether the behavior is a result of, or a manifestation of, a disability versus nondisability related poor choices.

In contrast, drug education may be required in certain instances. For example, where a student is placed in an interim alternative placement under § 1415(k) of the IDEA due to drugs, weapons or "dangerousness," the setting must include services and modifications that are designed to prevent this behavior from recurring. In a drug situation, drug education and counseling may be appropriate. This is not to be confused, however, withe drug treatment, which is a medical versus educational service, or drug prevention in the sense of eliminating opportunities for drug-related infraction to occur. As always, each case will be different and must be based upon the individual assessment and determination of needs of a particular student.

Q: With IDEA-97's focus on participation in the general curriculum, is every student required to participate in regular education classes?

A: No. First, participation in the general curriculum is not synonymous with participation in regular education. The general curriculum is a thing, not a place. General curriculum can be worked on at varying levels and in varying locations, even in center-based programs. The extent of participation of a particular student in the general curriculum and in regular education classes is an individual decision to be determined by the IEP team. OSEP recently clarified that IDEA-97's focus on regular education participation does not mandate inclusion of all students with disabilities in general education classes, and that all placement decisions must be based on each student's individual needs. See, Letter to Anonymous, 30 IDELR 114 (OSEP 1997). In determining what the least restrictive environment is for a student, IDEA-97 requires districts to consider information relating to participation in regular education and to identify why participation in regular education would not be appropriate for a particular student. On the continuum of placement considerations, OSEP clarified that regular education should always be the first placement considered, but noted that all placement decisions must be made on an individual basis by the IEP team. See, Letter to Hall, 30 IDELR 142 (OSEP 1997).