August, 2000 ~ Volume 13, Issue 12
Ounce of Prevention News
Information and Ideas for Practical Problem Solving in Special Education
Return to the Articles Index Return to the Issues Index
In this issue:
Eighth Circuit Rejects Request for Home-Based Lovaas Therapy At Public Expense..1
Court Gives Failing Grade to Grading Practice...........................................................1
Attorney
General Issues Opinion on Disclosure of Records Under Statewide
School Safety Information Policy..................................................................................2
FAQ's ............................................................................................................................2
Review Officer Dismisses Hearing But Orders IEP to Be Completed...........................5
FERPA Rights May Survive Student's Death................................................................6
Eighth
Circuit Rejects Request for Home-Based Lovaas Therapy
At Public Expense
In a case raising many of the same issues considered by the Sixth Circuit in its recent decisions involving parent requests for Lovaas therapy or discrete trial training (Renner, Dong and Burilovich), the Eighth Circuit has now also rejected a parent request for Lovaas therapy in Gill v. Columbia 93 Sch. Dist., 32 IDELR 254 (8th Cir, 2000).
Shortly before his third birthday, the student, who is autistic, was placed in a preprimary self-contained classroom for three half-days a week and provided physical, occupational and speech therapy. The parents agreed with the IEP.
For the following school year, his basic placement was continued but the amount of time in school and the amounts of therapy were increased. The parents again accepted the IEP.
The parents then began exploring alternative methods of instruction and decided that the student should primarily be educated in the Lovaas method. They hired private Lovaas therapists. His therapy quickly increased to thirty-five hours a week. They reduced his school attendance to two half-days per week. His verbal skills increased but his social skills began to decline.
An IEP was convened in March to consider a parent request for the district to fund forty hours a week of Lovaas therapy. The district declined to fund the Lovaas therapy but proposed increasing the time in the self-contained classroom to twelve hours a week, adding seventeen hours in a Areverse mainstream@ classroom, more one-on-one training in school and hiring an additional aide for the classroom. The parents agreed to implement this program on days the student attended school.
The IEP team continued to meet over the next ten months but could not reach a consensus. The parents persisted in seeking Lovaas, while the district believed the home-based program was not appropriate, in part because it did not allow interaction with nondisabled peers.
In December, the parents requested a due process hearing on the March IEP. The hearing panel heard testimony from the parents, the Lovaas expert who had developed their home program, and the district=s teachers and therapists. The panel excluded testimony from two experts hired by the parents after the March IEP on the basis that their testimony was not relevant to the appropriateness of the IEP because it had not been presented at the IEP team meeting. The hearing panel found the district=s IEP was appropriate but should be revised to incorporate additional one-on-one therapy the district had agreed to provide. A majority of the panel also ordered the district to fund ten hours a week of one-on-one training at home.
The parents appealed to federal district court. The court refused to hear the proposed expert testimony as additional evidence on the basis that the March IEP could not be judged in hindsight and the evidence was cumulative. After reviewing the record, the court found the district=s program appropriate and granted summary judgment to the district.
On appeal to the Eighth Circuit, the parents first contended that the district=s program did not meet a higher Missouri state standard of Amaximizing the capabilities@ of the student. The Court found that Missouri had not adopted a higher standard and applied the Rowley standard of whether the program and services are Areasonably calculated to provide some educational benefit to the student.@
The parents also contended that they had a right to present their proposed expert testimony to the district court as additional evidence. The Eighth Circuit found that in giving Adue weight@ to the administrative proceedings, a court should ordinarily defer to the hearing officer or panel=s judgment in building the record and should exercise its discretion to hear additional evidence only when a party provides Asome solid justification@ for expanding the record. The hearing transcript was over two thousand pages. The Eighth Circuit held that the district court did not abuse its discretion in concluding the record was sufficient.
The Eighth Circuit also found that the district court had reviewed the record and concluded that the student=s verbal skills improved more quickly under Lovaas therapy but his social skills suffered. The Eighth Circuit held that the district court did not abuse its discretion in declining to decide which skill should be emphasized but instead deferring to the expertise of the hearing panel which found the district=s program appropriate. AFederal courts must defer to the judgment of education experts who craft and review a child=s IEP so long as the child receives some educational benefit and is educated alongside his nondisabled classmates to the maximum extent possible.@
Implications:
This is at least the third federal appellate court decision that has declined to read a higher state standard into IDEA and has instead used the Rowley standard to determine the appropriateness of an IEP. The Sixth Circuit previously declined to read Tennessee and Michigan law as creating higher state standards. In the past, courts have commonly referred to the state standard but decided cases on the Rowley standard and declined to award any additional relief based on alleged differences in the standards. In these recent cases, the courts have resolved the issue by concluding that there is no difference in the standards.
The Eighth Circuit firmly rejected the claim that parties have a right to present additional evidence when they get to court. To prevent Asandbagging,@ numerous decisions have barred such testimony when it could have been offered in the due process hearing. In this case, however, both the hearing panel and district court went a step further and barred testimony on information that was not presented at the IEP team meeting. The Eighth Circuit affirmed these rulings and held that district courts should normally defer to the evidentiary rulings of hearing officers and panels.
The decision supports the strong trend in recent court and hearing officer decisions requiring parents to present their concerns to the district and afford it an opportunity to address those concerns through the IEP process, rather than raise issues for the first time at the due process hearing. The Court was also clear that parental participation in the process does not mean their views must prevail. AParents who believe that their child would benefit from a particular type of therapy are entitled to present their views at meetings of their child=s IEP team, to bring along experts in support, and to seek administrative review. The statute sets up this interactive process for the child=s benefit, but it does not empower parents to make unilateral decisions about programs the public funds.@
Court Gives Failing Grade to Grading Practice
The age old practice of allowing students to grade each other=s tests and papers recently flunked a FERPA challenge in Falvo v. Owasso Independent School District, 33 IDELR 7, (10th Cir, 7/31/00).
In Falvo, the parent of three middle school students learned that a number of her children=s teachers would occasionally require students to grade each other=s work and then call out their own grades in class to the teacher. The parent complained about the practice to school officials claiming that the practice severely embarrassed her children. School officials refused to discontinue the practice, claiming that the children always have the option of confidentially reporting their grades to the teacher rather than calling out the grade in class. The parent sued the district, the school superintendent and several other administrators alleging the grading practice violated the Family Educational Rights and Privacy Act (FERPA) and her children=s privacy rights under the 14th Amendment.
The federal district court concluded the grading practice did not implicate a constitutionally protected privacy interest under the 14th Amendment. In addressing the parent=s FERPA claim, the court concluded the grading practice did not violate FERPA because the children=s grades were not Aeducation records@ which were Amaintained@ by the school district. In so ruling, the district court gave deference to a 1993 interpretive letter from LeRoy S. Rooker, the Director of the Family Policy Compliance Office (FPCO), the agency which oversees enforcement of FERPA. In that letter, Rooker opined that FERPA would not prohibit a teacher from allowing students to grade another student=s work and calling out the grade in class because such grades were not, in the strictest sense, Amaintained@ by the district. Mr. Rooker also submitted an affidavit in the case confirming that his 1993 letter represented the current position of the FPCO on this grading practice.
The parent appealed both aspects of the decision to the Tenth Circuit. On appeal, the Tenth Circuit acknowledged that the 14th Amendment protects against the disclosure of certain types of personal information but ruled that school work and test grades of middle school students were not Aso highly personal or intimate@ that they fell within the category of constitutionally protected information.
As for the FERPA claim, the Court concluded that the district court had erred in granting deference to the Rooker letter and affidavit. The Court explained that FERPA clearly defines the terms Aeducation records@ and Amaintain,@ and a court can only defer to an agency=s interpretation if the statute is ambiguous. FERPA defines Aeducation records@ as Athose records, files, documents and other materials which . . . contain information directly related to the student@ and are Amaintained by an educational agency or institution or by a person acting for such an agency or institution.@ The Court found that there was no dispute that the grades which the students placed on each other=s papers and reported to the teacher contained Ainformation directly related to the student.@ Moreover, the grades which the students marked on the papers, at the direction of the teacher, were Amaintained@ by a person acting on behalf of the school district. Therefore, the district court erred when it concluded the grading practice did not violate FERPA. Accordingly, the Court affirmed the district court=s grant for summary judgment in favor of the school district on the 14th Amendment claim but reversed the court=s grant of summary judgment in favor of the school district on the parent=s FERPA claim.
Implications:
While this case is not binding on school districts in Michigan (the Tenth Circuit covers the states of Oklahoma, Colorado, Kansas, New Mexico, Utah and Wyoming), in light of this decision, it would be wise for all school districts to review teacher grading practices to ensure their conformance with FERPA.
he statute that required the development of the Statewide School Safety Information Policy (1999 PA 102, which added '1308 to the Revised School Code, MCL 380.1308) contains a provision that the parent or guardian of a pupil involved in a reportable incident
Ashall execute any waivers or consents necessary to allow school officials access to school, court, or other pertinent records of the pupil concerning the incident and action taken as a result of the incident.@
The Attorney General recently issued an Opinion (No. 7059) interpreting this waiver provision and its interplay with FERPA and with a state law privilege (MCL 600.2165) that bars school officials from disclosing student behavior records and confidential communication from students in civil or criminal court proceedings without consent of the student or the student=s parent or guardian.
The Opinion concluded that, because the waiver provision is intended to give school officials access to information and does not authorize or require school officials to disclose information, it does not affect or alter the statutory privilege. The Opinion also concluded that, for several reasons, the waiver provision does not violate FERPA.
School officials usually already have the student=s education records and thus FERPA is not implicated. Where FERPA is implicated, for example when records are needed from another school district, the statute expressly provides that any disclosure is subject to FERPA requirements. Thus, any required notices must be given and required consents obtained before the records are disclosed. When access to non-school records, such as those of law enforcement agencies, is sought, FERPA has no application.
The Opinion further ruled that the waiver is not mandatory and, to be valid, must be knowing, intelligent, and voluntary. As the waiver or consent must be informed and voluntary, if given it would be sufficient to waive any right or privilege the student might have.
Finally, the Opinion also found that a separate provision requiring school officials to provide certain information to law enforcement agencies, does not violate FERPA because, as earlier discussed, any disclosure by school officials is expressly made subject to FERPA requirements. Thus, personally identifiable student information regarding an incident cannot be disclosed without consent of the parent, or student if 18 or older, unless one of the FERPA exceptions, such as existence of a current emergency or receipt of a subpoena for the records, applies.
Implications:
As the Opinion makes clear, the waiver provision only applies to disclosures to school officials. It does not apply to disclosures by school officials and, in any event, does not excuse compliance with FERPA. Any disclosure of personally identifiable student information by school officials must comply with FERPA.
We are aware of a few instances in which law enforcement officers have demanded information from school officials and threatened sanctions when information was refused because of FERPA requirements. Districts must resist intimidation and comply with FERPA. If law enforcement officers persist after being apprised of FERPA requirements, they should be referred to the district=s legal counsel.
Q. May a student who is eligible for special education and related services under the federal definition of autism but not under the Michigan definition, be denied special education?
A. No. The Attorney General recently issued an Opinion addressing the relationship between the federal and Michigan definitions of autism. The specific question posed was whether a student whose disabling condition meets the federal definition of autism but not Michigan
=s definition could, on that basis, be denied special education. The Opinion concluded that the answer is no.The Opinion finds that any student who is eligible for special education and related services under the definitions in IDEA and its implementing regulations must receive FAPE. This federal entitlement cannot be defeated by a more restrictive state definition. Under IDEA, however, a student is not entitled to any particular classification, or
Alabel.@ Thus, the fact that Michigan=s definition of autism may be more restrictive than the federal is of no significance if the student is found eligible either as Aautistic impaired@ or under some other classification, e.g., Aphysically or otherwise health impaired@ (presumably on the theory of an underlying neurological etiology. So long as a student meeting the federal definition of autism is found eligible for special education and related services, there is no requirement that the student be classified as Aautistic.@Implications
:To our knowledge, the issue addressed in the Opinion has not been a problem. Districts in fact have been finding students with autism-related conditions, such as pervasive developmental delay, eligible for special education programs and services even though they may not fully meet every condition of the Michigan rule. Obviously, however, someone considered this to be at least a potential problem.
The conclusions of the Opinion are clearly correct. Under IDEA, a child meeting any of the 13 definitions of disability in IDEA and its regulations who, by reason of that disability, needs special education and related services is a
Achild with a disability@ and must be provided FAPE. So long as the student is provided FAPE, however, there is no requirement that his Alabel@ correspond with any particular federal definition.
Review Officer Dismisses Hearing But Orders IEP To Be Completed
When a parent requested a due process hearing on an IEP that had not been completed, the state review officer dismissed the hearing as premature but ordered the parties to complete the IEP, in Lincoln Park Sch. Dist., 32 IDELR 276 (SEA MI, 2000).
The parents and district had developed an agreed-upon IEP in May, 1999. Subsequently, the parent requested changes in the IEP and the IEP Team met in October, 1999 and developed a new IEP. The new October IEP apparently was not significantly different from the May IEP. The October IEP was not signed by either the district representative or the parent. The IEP Team also met in November, 1999 and reviewed the student=s behavior intervention plan (BIP).
The parent then requested a due process hearing to contest the October IEP and the BIP. Initially, the district acknowledged that the October IEP was at issue and the parties mutually agreed on a hearing officer.
Subsequently, a disagreement arose as to whether the unsigned October IEP or the May IEP was in dispute. Ultimately, for reasons that are unclear from the decision, the hearing officer dismissed the hearing request. The parent appealed the dismissal.
The state review officer found that the parent was seeking a change in the May IEP and that was why the October IEP Team meeting was convened. The review officer found that whether the meeting was convened to Areview@ the May IEP or to develop a new IEP was Asplitting hairs@ because the only way to change services was to develop a new IEP.
A parent has the right to request a hearing when a district refuses to change the educational placement of a student or the provision of FAPE. Here, the parent believed the October IEP provided insufficient resource room services and the BIP was inadequate. The state review officer ruled that the first issue would clearly be hearable if the IEP had been completed and the second issue might be hearable, depending on why the parent contended the BIP was inadequate. Accordingly, the review officer ordered the parties to complete the October IEP and dismissed the hearing, subject to the parent=s right to request a new hearing if the completed IEP was not agreed to.
Implications:
This case well illustrates the need for districts to pay attention to the details of the process. Here, a written IEP document was developed but not signed by either party. Parents are not required to sign post-initial IEPs. Districts, however, must either appeal the IEP or affirmatively indicate their intent to implement. Normally, intent to implement is indicated by the signature of the district=s representative. In this case, because the district did not indicate its intent to implement, confusion developed as to whether there was an IEP and six months was consumed in the hearing process simply to get back to what should have been the starting point B a completed IEP.
The second point of the case is that parents have the right to request a hearing on a district=s refusal to change a student=s IEP. Parents normally have a right to request an IEP Team meeting to consider changes in their child=s IEP. The ultimate decision of the Team could be that no change is necessary. That decision must be reflected in a completed IEP, however, so that the parents can then avail themselves of their right to a hearing if they so choose.
Although this case probably isn=t the best illustration, it does address an ever increasing phenomenon in special education, i.e., the premature due process hearing request, where, apparently anticipating unwanted outcomes, parents are requesting hearings mid IEP. While districts must process such requests, once a local hearing officer is agreed to/appointed, the district should move for dismissal.
FERPA Rights May Survive Student's Death
In an information letter issued by Attorney General Granholm=s office, the Attorney General was asked whether the FERPA rights of a student who is deceased survive the student=s death. Relying on a technical assistance letter from LeRoy S. Rooker, Director of the Family Policy Compliance Office (FPCO) in the US Department of Education, the Attorney General=s Office concluded that, in certain cases, FERPA rights may survive.
In the technical assistance letter, FPCO acknowledged the long standing position of the Department that the rights of an Aeligible@ student lapse or expire upon the death of the student. Under the regulations, a student is eligible when he or she reaches age 18. However, FPCO also concluded that if students die before they reach the age for eligibility, FERPA rights in the deceased student=s education records do not expire or lapse, but instead remain in the parents.
Implications:
Districts should indicate on the education records of deceased students whether they are still subject to FERPA requirements. If the student was 18 or older at the time of death, FERPA no longer applies to the student=s records. When a student under the age of 18 dies, however, districts must continue to comply with FERPA regarding the student=s education records and must receive a parent=s written consent before releasing those records, unless one of the exceptions to the consent requirement applies.