April, 2000 ~ Volume 13, Issue 8
Ounce of Prevention News
Information and Ideas for Practical Problem Solving in Special Education
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In this issue:
For the Third Time, The Sixth Circuit Rejects A Request for Discrete Trial Training.1
Subpoenaed! What do I do?.........................................................................................1
Michigan Supreme Court Rejects Claim of Educational Malpractice.........................2
FAQ's ...........................................................................................................................2
Federal Register Publishes List of OSEP Policy Letters..............................................5
For
the Third Time, The Sixth Circuit Rejects A Request for Discrete Trial Training
In the last of a trilogy of cases from Michigan, the Sixth Circuit has for the third time upheld a school district's proposed placement and rejected a parent request for intensive discrete trial training (DTT) in Burilovich v. Bd. of Ed. of Lincoln Cons. Schs., 32 IDELR 85 (6th Cir., 2000). [For summaries of the two earlier decisions, see OP News, August 1999 and December 1999.]
In November, 1993, when he was three, the student was found eligible as PPI and was provided nonclassroom PPI services and speech and language therapy. In February, 1994, the parents had him evaluated and he was diagnosed as autistic. His teacher was given a copy of the evaluation but it was not placed in his school file.
The parents started a home-based DTT program for the student. In June, they wrote to the district, expressing concern about the amount of instruction being provided and indicating that he was autistic. In the fall, an IEP was developed that placed the student in a PPI program for 22 hours a day, four days a week, with 40-80 minutes per week of speech and language therapy. The IEP did not include any DTT, despite a parent request, but the teacher offered to and did provide DTT for a half hour before the school day began.
By Thanksgiving, the student was receiving at least 20 hours per week of DTT in his home program. After Christmas, the parents reduced his school participation to two days a week and increased his home-based DTT to 20-25 hours per week. This was subsequently increased to 25-30 hours per week.
An IEPC was convened in December, 1995. The IEPC was not concluded but the district did propose a program and requested that the parents provide their medical evaluations regarding autism. The parents provided their February 1994 evaluation and the district then conducted its own evaluation.
A further IEPC was convened in March 1996. The parents' expert submitted a formal written program proposal for the student. The district's representative accepted the goals and objectives developed by the expert and proposed a program predominately consisting of DTT. No written IEP was developed.
Following the meeting, the district's director realized his staff did not support DTT for the student. He then met with staff to develop a new proposal with similar goals but without DTT and instead placing the student in a mainstream kindergarten class with a one-to-one aide. An IEPC in May 1996 adopted this proposal. The parents signed in disagreement and requested a due process hearing.
The local hearing officer ruled for the parents, finding the March 1996 oral proposal was an IEP and should be implemented and ordering reimbursement of the parents for the in-home DTT. The state review officer reversed, finding no IEP was created in March, that the May IEP provided FAPE and that the parents were not entitled to reimbursement.
The parents then filed suit in federal district court, appealing the review officer's decision and alleging violations of IDEA, '504, the ADA, section 1983 and the Michigan Handicappers' Civil Rights Act. The district court granted summary judgment to the school district, affirming the review officer's decision on the IDEA claim and dismissing the other claims.
On appeal, the Sixth Circuit affirmed the decision of the district court. The Court first addressed the standard of review that requires a court to give "due weight" to the administrative proceedings. The Court held that a court should defer to administrative findings only when educational expertise is relevant to the findings and the decision is reasonable. If there is a conflict between the decisions of the local hearing officer and the state review officer, the court is to defer to the decision of the review officer.
Addressing the substantive issues, the Court ruled that an IEP is a written document and thus there never was a March 1996 IEP. The Court rejected the claim that the parents were denied meaningful participation in the IEPC process because they were not invited to the staff meeting that developed the proposal for the May 1996 IEPC. The Court found the parents had been strongly involved in the process and that there is no support for the assertion that district staff can never discuss a child's IEP or goals and objectives without the parents. The Court also rejected the claim that, in addressing placement options, an IEP Team must include an expert in the teaching method preferred by the parents.
The Court found the February 1996 autism evaluation was adequate to support the May 1996 IEP and there was no showing of a need for a new evaluation. The Court also found the district timely recertified the student as autistic in 1996, even though it knew he was diagnosed as autistic in 1994, because he was receiving services as a PPI student and there was no showing that the delay caused a substantive problem with his IEP.
The Court found that the district's program took the student's unique needs into consideration and noted the district court's finding that "the standard 40 hours of DTT therapy" was not tailored to his needs. Finally, addressing "maximum potential," the Court found the parties "had widely differing views of the best method of education" for the student. Given the differing opinions and the reasonable bases for them, the Court deferred to the review officer's decision upholding the IEP. The Court also affirmed dismissal of the non-IDEA claims because the student was offered a FAPE.
Implications:
Some of the issues in this case were previously addressed by the Sixth Circuit in Renner and Dong and the Court again came to the same conclusions. In particular, the Court has indicated that it will not find a denial of FAPE for procedural violations of IDEA, such as a failure to promptly evaluate, unless there is a showing the violation had a substantive impact on the student's special education program and services.
There are two significant new rulings in this decision. The first is that IEPs must be in writing and an oral discussion, even at a formally convened IEP Team meeting, cannot be deemed to constitute an IEP.
The second is the clarification of the "due weight" standard. The Sixth Circuit has ruled that courts are to defer to the state review officer's findings on matters involving educational expertise or policy as long as the decision is reasonable. This ruling cuts both ways. It limits the findings which must be given deference but gives greater deference to findings on educational issues than was perhaps accorded in the past. It will likely be more difficult in the future to overturn state review officer decisions that involve "educational expertise."
In the March issue of OP News we discussed the differing types of subpoenas and how they are generally issued. When a district receives a subpoena, either requesting testimony or records, issues of confidentiality and privilege may be presented, depending on what is requested.
Confidentiality - FERPA Issues
The Family Educational Rights and Privacy Act (FERPA) generally prohibits the disclosure of personally identifiable information in a student's education record, or information obtained from that record, without parental consent. An education record is defined as any record which contains information directly related to a student and is maintained by an educational agency. There are some exceptions to the term "education record," which most notably includes records which are maintained in the sole possession of the maker and are not accessible or revealed to any other person except a substitute (e.g., lesson plans, etc.) and records maintained by a law enforcement unit of the educational agency. Essentially, most records maintained by a school district relating to a student will constitute an education record.
There are exceptions to the consent requirement under FERPA. One of those exceptions relates specifically to judicial orders and validly issued subpoenas. While this is an exception to the consent requirement, a school district must take additional action when providing records without consent pursuant to the order or subpoena.
When a district receives a subpoena requesting records, the first thing to note is the date by which the records are to be provided. Although the records may be provided pursuant to the exception and without written parental consent, the district must provide the parent notice of the request in order to give the parent time to take some action to set aside the subpoena. This is typically called a motion to quash. Since subpoenas requesting records generally must be served at least 14 days before the date the records are to be provided, a letter with a copy of the subpoena could be sent to the parent indicating that, absent their taking some action to set aside the subpoena, the records will be provided. Many times a telephone call to the parent, and/or their attorney if they are represented, will expedite the matter. There are times that the parent would be willing to sign a consent to permit the release even though consent is not required. In domestic relation matters, e.g., divorces, a district must remember that both parents have rights to their student's education records and may sign the release, unless the court has issued an order restricting a parent's right to access. Care must be taken, however, since even directory information (e.g., address, telephone number, etc.) may be prohibited from release pursuant to some personal protection orders issued in domestic relations matters. The safest course of action would be to immediately contact district counsel for guidance.
Many times psychologists and other diagnosticians will claim that test answer sheets, commonly referred to as protocols, are protected by copyright or other prohibitions against their release. While it is always preferable to release these types of documents to persons who are able to properly interpret them (such as a psychologist) once the answer sheet has been filled out and contains personally identifiable information regarding the student, it becomes an education record. The publisher of the test cannot claim a copyright to the information on the form. Essentially, the publishers merely want to prohibit the copying and use of blank forms, or the release of the test questions (for validity purposes). If the subpoena requests copies of test answer sheets, they must be provided in the same manner as other education records absent an order of the court prohibiting their release.
Privilege
Subpoenas may also request the testimony of particular school district employees. This is particularly true in divorce actions, custody disputes, juvenile court delinquency actions, etc. These subpoenas may seek testimony of social workers, psychologists and teachers. All of these professionals have some form of "privilege" as it relates to communications with the student, and are prohibited by FERPA from disclosing information obtained from a student's education record.
Social workers and psychologists have specific statutes that prohibit them from disclosing communications made by a client during the course of the social worker or psychologist's professional employment. This privilege (typically referred to as the doctor/patient privilege) may be waived by the student, the student's parent or guardian. Even with this waiver, however, there may be times that a professional is reluctant to disclose confidential communications due to its sensitive nature.
If a subpoena is received requesting testimony, either at trial or deposition, the district should immediately contact its counsel. Absent some action being taken in court to quash the subpoena, the professional must honor the subpoena and appear for testimony. At the time of testimony, the safest method to proceed would be for the professional to invoke privilege on behalf of the student, and refuse to answer questions absent direction from the court. Typically, the attorney questioning the professional will then ask the court to direct the witness to answer the question. If the judge does so, the privilege is "waived," and the professional must answer the questions. This process will protect the professional from future claims that confidential information was released without appropriate consent.
In the situation where a subpoena requests that a professional bring records with him or her, the additional requirements relating to the release of education records discussed above must also be complied with.
School teachers, guidance counselors and other school officials, who are "engaged in character building" in a public school and maintain records of a student's behavior, who receive in confidence communications from the student are not allowed to disclose the information obtained from the records of such communication. They are also prohibited from releasing the record itself. This state statute provides a "privilege" in confidential communications between a teacher and the student. Much the same as with social workers and psychologists, a teacher or other person who has received information in confidence should invoke such privilege when called to testify. The court may then order the teacher or other employee to divulge the information. In such a way, the teacher or other district employee is protected from future claims of improper release.
In summary, subpoenas can create difficult and confusing situations for school district employees. While the information in records may ultimately be required to be released, the district must make sure it takes steps to comply with the requirements of FERPA and to obtain valid consents or judicial orders waiving privileges. Never simply ignore a subpoena. If there is a question as to its validity, or the process to assure proper compliance, consult with your district's attorney.
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Michigan
Supreme Court Rejects Claim of Educational Malpractice
The Michigan Supreme Court has declined to recognize a claim of "educational malpractice" in Page v Klein Tools, Inc., _____ Mich _____ (2000). The Michigan Court of Appeals has previously ruled that "educational malpractice" was not a recognized cause of action in Michigan but this was the first time that the Supreme Court had considered the issue.
The case arose in an unusual context in that the plaintiff did not attend a typical "school." Rather, the plaintiff attended a three-week class in which he was instructed in climbing wooden utility poles. Shortly thereafter, he fell from a utility pole and was seriously injured. He then sued the entity that had provided the class for failing to provide adequate instruction regarding pole climbing.
In refusing to recognize a claim of educational malpractice, the Court cited a number of public policy reasons:
1. the lack of a satisfactory standard of care by which to evaluate an educator;
2. the inherent uncertainties about causation and damages in light of intervening factors, such as the student's attitude, motivation, temperament, past experience and home environment;
3. the potential for a flood of litigation against schools; and
4. the possibility that such claims would embroil courts in overseeing the day-to-day operations of schools.
The Court found that education is a collaborative process in which teacher and student must work together. The Court observed that ultimate responsibility for what is learned remains with the student and many considerations, apart from the teacher, factor into what the student learns.
The Court also found that the alleged injury was too remote from the negligence and wholly out of proportion to the culpability of a particular teacher and that if such claims were allowed, there would be no sensible or just stopping point.
Two justices dissented because, on the case's peculiar facts, they did not find it presented an educational malpractice claim. From the tenor of their dissent, it would appear that they would also refuse to recognize an educational malpractice claim in a more traditional case.
Implications:
The Supreme Court has squarely refused to recognize a claim for "negligent instruction." In doing so, the Court stressed that there may be a multitude of reasons why a student fails to learn, many of which are beyond any teacher's control. Moreover, education is a cumulative endeavor and, even assuming a student's failure is attributable to his teachers, there is no way of determining to what extent a particular teacher contributed to the failure.
The Supreme Court's decision confirms what we had already believed the law to be and, in that sense, does not change anything. The decision certainly is not intended to provide protection for incompetent teachers. Rather, it recognizes that this particular remedy, i.e., a lawsuit seeking monetary damages for negligent instruction, promotes neither effective schools nor the public interest. To some degree this principle is also recognized in special education in that an IEP is not to be construed as a warranty for success. One of the cases relied on by the Court had rejected a claim of negligent testing, evaluation and education of special education students.
B like procedural safeguards in disciplining situations. If the private school does not operate such programs, then its 504 obligations are more in the nature of reasonable accommodations. These do not rise to the level of conducting pre-change in placement manifestation determinations in discipline situations. However, '504 would require nondiscriminatory treatment in discipline situations, i.e., meting out comparable discipline to similarly situated disabled and nondisabled students.Q: Is a private school subject to the same requirements as a public school when it seeks to discipline a student identified as a "child with a disability" under the IDEA?
A: In general, no. Private schools do not receive federal funds under IDEA and are not required to afford the protections of IDEA to parentally placed students. Some private schools do, however, also enroll publicly placed students for the purpose of providing FAPE when the public agency is unable to do so and contracts with the private school for that purpose. A private school is subject to IDEA requirements with respect to publicly placed students.
In addition, many private schools, including parochial schools, receive some federal funding. This funding may come by way of Department of Education monies, such as Title I monies or drug free schools monies, or through the Department of Agriculture or other federal agency, for example school lunch monies. If a private school receives any federal funds, through the Department of Education or otherwise, the private school will be subject to Section 504 of the Rehabilitation Act of 1973. Section 504 prohibits discrimination based upon disability and has its own set of regulations relative to the provision of educational services. If the private school operates special education programs, then the school is required to provide FAPE
Federal Register Publishes List of OSEP Policy Letters
The Federal Register is the official publication site for OSEP's quarterly reporting of correspondence/responses that involve clarification of IDEA. (The Federal Register search page is located at http://www.access.gpo.gov/su_docs/aces/aces140.html) Although the purpose of the publication requirement is to assist the public in understanding the law, OSEP has limited its Federal Register data to a mere listing of correspondence with topic inquiry. The reader must review the list, see if there is a topic clarification of interest, and then call or write OSEP for a copy of its response. Although OSEP has announced that it will publish its clarification letters on its website, so far, no sighting.