December, 2000 ~ Volume 14, Issue 4
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:
Parent Placement Inappropriate - Second Circuit Rejects Tuition Claim...................1
OSEP: Graduation Does Not Necessarily Bar Compensatory Education...................1
Not Every Student With Dyslexia Is IDEA-Eligible, A Federal Court Rules...............2
FAQ's...........................................................................................................................2
Governor
Signs Bill Repealing Requirement That Speech Pathologists
Hold Teaching Certificates..........................................................................................4
A
Michigan Federal District Court Finds that Failure to Seek State Review
within 25 Day Timeline Bars Appeal ..........................................................................5
Parent
Placement Inappropriate - Second Circuit Rejects Tuition Claim
The Second Circuit has reversed an award of reimbursement for a unilateral private placement, even though the school district failed to provide FAPE, because the private placement was also inappropriate, in M.S. v Bd of Ed of City Sch Dist of City of Yonkers, 33 IDELR 183 (2nd Cir., 2000).
In February, 1997, the student was found eligible as learning disabled. An IEP was developed that provided for resource room services but did not specify how often. The student in fact received resource room for one hour per day.
The parent complained that the IEP goals and objectives were inadequate. A new IEP Team meeting was convened to revise the current IEP and develop one for the next school year. The parents= expert recommended a special school setting with small class size that could provide intensive remedial instruction. The IEP actually developed provided for two hours per day of resource room services. The parents rejected the IEP, enrolled their son in a private school that educated only learning disabled students, and requested a due process hearing to seek reimbursement.
The local hearing officer denied reimbursement, finding that the district=s program was appropriate and the private placement was inappropriate. The parents requested a state level review.
The state review officer found that the district=s IEP was inadequate and inappropriate for two reasons. The present levels of performance were a series of computer generated statements that did not include adequate objective data to establish a baseline from which progress could be measured. In addition, the goals and objectives were too vague to provide direction or to specifically address his needs. The review officer nonetheless denied reimbursement because he found the private placement to be inappropriate. The review officer found that the student had not made progress and the placement was not consistent with LRE requirements because the parent did not show that the student required a highly restrictive private placement.
The parents appealed to federal district court. The court decided the case on the administrative record. The court concurred with the review officer=s finding that the district=s IEP was inappropriate but reversed the finding that the private placement was inappropriate, ruling that the student was receiving an individualized program with small group instruction and was making academic progress and the LRE requirement did not bar reimbursement.
The school district appealed to the Second Circuit. The Court agreed with the district court and review officer that the district=s IEP was procedurally and substantively defective and not Areasonably calculated@ to deliver Aeducational benefits.@ With respect to the private placement, however, the Court held that the district court was required to defer to the review officer=s educational experience on matters such as assessment of educational progress, so long as the review officer=s findings were supported by the record. The Court found that the district court improperly substituted its own subjective judgment about appropriate measures of educational progress for the review officer=s. The Court further held that, while a parent=s failure to comply with the LRE requirement does not bar reimbursement, it is a proper consideration in determining the appropriateness of a placement, as the review officer had found. The Court thus reversed and denied reimbursement.
Implications:
The legal standard for reimbursement of a unilateral private placement has long been very clear: the district=s placement must fail to provide FAPE for the student and the parent=s placement must be appropriate. In practice, however, when the district=s placement is found to deny FAPE, hearing officer and courts tend to gloss over the second requirement and fairly automatically find the private placement appropriate.
This case clearly reiterates that there are two requirements that must be met for reimbursement to be awarded. The district=s proposed placement was woefully deficient but that was not determinative. The Court emphasized that the parents= private placement must also be appropriate and LRE considerations are relevant in making that determination.
Probably even more noteworthy is the Court=s very clear holding on the deference to be afforded to decisions of state review officers. The Court ruled that district courts should defer to the review officer=s educational experience so long as the officer=s findings are supportable by the objective evidence in the record. Although the Court does not cite the recent Sixth Circuit decision in Burilovich v Bd of Ed of Lincoln Cons Schs, 32 IDELR 85 (6th Cir., 2000), the Court=s language is strikingly similar to the Sixth Circuit=s statement that courts are to defer to the review officer=s findings on matters involving educational expertise as long as the decision is reasonable. (See, OP News, April, 2000). Under these rulings, decisions of state review officers on educational matters, such as the sufficiency of the IEP, placement, or provision of FAPE, become quite difficult to overturn. In turn, who the review officers are and how they are selected acquires substantially greater significance than it has been given in the past.
OSEP: Graduation Does Not Necessarily Bar Compensatory Education
OSEP has opined in Letter to Riffel, 33 IDELR 188 (OSEP, 2000), that graduation does not preclude an award of compensatory education to remedy a denial of FAPE. The letter was based on the following facts.
A complaint was filed with the state department, alleging the student was denied FAPE because he was excluded from certain classes when the teachers refused to provide accommodations. The department found a denial of FAPE and ordered the district to determine the need for compensatory services, provided that the student delayed graduation. The student chose to graduate and the district refused to provide compensatory services. Despite graduation, the student still sought compensatory services.
OSEP acknowledged that graduation with a regular high school diploma normally ends a student
=s entitlement to FAPE. It concluded, however, that graduation is separate from a determination through complaint resolution that the student has been denied FAPE and needs compensatory services.Implications:
There are several morals to this story.
1. A special education student doesn
=t unilaterally determine when Agraduation with a regular high school diploma@ occurs.2. When considering whether to graduate a special education student, the IEP Team should inquire
AIs there any reason why this student should not receive a regular high school diploma and graduate from regular and special education?3. If a special education student has received transition services as appropriate and meets graduation criteria, FAPE has been achieved despite prior district transgressions. Compensatory education is used to recoup FAPE, not to extend it.
Application of this OSEP letter beyond its facts would be inconsistent with the decision of the Sixth Circuit in Covington v Knox County School System, 32 IDELR 29 (6th Cir., 2000). (See, OP News, March, 2000.) In that case, it had not yet been determined whether the student
=s rights were violated because the case had been dismissed for failure to exhaust administrative remedies. On appeal the Court held that the student was not required to request a due process hearing prior to going to court because the student had already graduated and thus equitable relief (which would include compensatory services) could not be awarded if the student prevailed. The Court ruled that damages were the only available remedy and they could not be awarded in a due process hearing. While the Court=s rationale is troublesome because it assumes that, despite graduation, there remains an unremediated injury, it does clearly conclude that, after graduation, compensatory services are not an available remedy.Not Every Student With Dyslexia Is IDEA-Eligible, A Federal Court Rules
A student with dyslexia is not automatically entitled to special education and related services under IDEA and was provided appropriate accommodations under '504, a federal district court in Louisiana has ruled, in Grant v St. James Parish School Board, 33 IDELR 212 (ED LA, 2000).
When the student was in sixth grade, a parent-initiated private evaluation identified the student as exhibiting signs of dyslexia. The parent requested the school district to conduct an evaluation.
Louisiana has a specific, five-step process for identifying and evaluating students who may have dyslexia. A building-level committee gathers and reviews data regarding the student=s educational progress. Specialized instructional interventions and strategies are provided within the regular education program. An assessment is done for dyslexia and related disorders. If the student is dyslexic, a multi-sensory regular education program is implemented. Finally, the district, the parent, or a hearing officer can refer the student for an evaluation to determine eligibility under IDEA.
The committee met, accepted the parent=s private assessment that the student had dyslexia, and decided to provide a multi-sensory reading program in the regular classroom setting and accommodations of extended time and repeated directions on tests, directions being read aloud and paraphrased, and no penalty for misspellings, even though the student was performing average to above average. The committee determined that the student did not need to be evaluated for IDEA eligibility and the parent did not request an evaluation.
Some three years later, the parent expressed concern that the district was Adoing nothing@ to assist the student and requested testing for dyslexia. The committee determined that she was still dyslexic and for the following year (tenth grade) added a weekly small group reading class.
In the student=s junior year, the parent obtained another independent evaluation. The examiner found she was dyslexic and reading on a sixth grade level. He recommended further remediation and accommodations. Despite this evaluation, the district continued with the services it was providing. The student was receiving primarily A=s and B=s, had no D=s or E=s, and had passed her state assessment and graduate exit exams.
The parent requested a due process hearing. The hearing officer found that the student had received FAPE and the district was Ain complete compliance with the law.@ The parent requested state level review, which was denied on the basis that the case fell under '504 and not IDEA.
The parent then filed suit in federal district court, alleging the district had failed to comply with the Louisiana dyslexia process and had failed to provide the student with FAPE, in violation of IDEA and '504. The court found that the district had complied with the Louisiana process and that the process satisfied the requirements of '504 and IDEA. With respect to the '504 claim, the court found that the district had provided appropriate accommodations and remediation and the student had received educational benefits. The court found the district=s rejection of the recommendations of the parent=s independent evaluator to be merely a Achoice of methodology.@
On the IDEA claim, the court observed that the definition of the term Achildren with disabilities@ has two prongs. The first is whether the child has a condition included in the list of disabilities. The court noted that dyslexia is included in IDEA=s definition of Aspecific learning disability.@ The second prong, however, is whether children Aby reason thereof, need special education and related services.@ Under this prong, not every dyslexic student is IDEA eligible.
In this case, neither the parent, the school district, nor a hearing officer had ever requested an IDEA evaluation. In addition, the court found that, based on the evidence, the school district=s decision not to evaluate was reasonable. The student was performing at or above average and there was some question as to whether she needed all of the accommodations she was already receiving. The court held that the school district had not violated IDEA and granted summary judgment to the district.
Implications:
The court clearly held that merely having a condition listed in the IDEA definitions of disabilities, such as dyslexia or ADHD, does not make a student eligible for services under IDEA. There must also be a demonstrated need for special education and related services resulting from that condition.
It is important for districts to be proactive in child find activities. Child Study Teams may employ general education interventions for at risk students, but cannot use these to delay special education referrals if the district has reason to suspect a disability that requires special education and/or related services. If parents request a special education evaluation or otherwise indicates that they suspect a disability, the district should determine whether it shares this perception (a referral would be made) or does not share this perception (notice to parent that the district declines to evaluate, with notice of right to disagree and request hearing). In this case, from the time the parent first expressed concerns, the district had addressed those concerns and provided services and accommodations under '504. In addition, the district had affirmatively determined that an IDEA evaluation was not warranted and the parent never contested that determination or herself requested an evaluation.
When districts are responsive to parent concerns and exercise their best judgment in addressing students= needs, courts are reluctant to substitute their judgment. It is when matters are allowed to slide that courts are likely to intervene and award parents relief.
Governor Signs Bill Repealing Requirement That Speech Pathologists Hold Teaching Certificates
On January 2, 2001, Governor Engler signed 2000 PA 387, which was given immediate effect. Act 387 adds section 1327 to the Revised School Code. Section 1327 expressly nullifies administrative rule requirements to the contrary and provides that a school district, intermediate school district, or public school academy may employ a person who does not hold a teaching certificate to provide speech and language services if the person meets the requirements for speech-language certification by the American Speech-Language-Hearing Association. However, a person who does not hold a teaching certificate may not be assigned to serve as a classroom teacher.
A Michigan federal district court has issued two important rulings regarding the timeline to appeal hearing officer decisions and the effect of unilateral private placements on pending claims in Kuszewski v Chippewa Valley Schs, 33 IDELR 214 (ED MI, 2000).
The parents had previously attempted to contest an IEP by going directly to court. The district court had ordered them to exhaust administrative remedies and held the case in abeyance.
In the sixth day of hearing before the local hearing officer, the parents= attorney informed the hearing officer that the parents had unilaterally withdrawn the student from the district and placed him in a private school (actually a home school). The district then filed a motion to dismiss the hearing as moot. The hearing officer granted the motion. The parents received the decision on September 7, 1999. On September 28, the parents faxed a letter of appeal to the Michigan Department of Education (MDE). MDE requested additional information to complete the processing of the appeal. The parents provided the information on October 10. MDE then appointed a state level review officer.
The district moved to dismiss the appeal as untimely and as moot. The review officer granted the motion on both grounds. The parents then went back to federal district court. The school district moved for summary judgment on the basis that the administrative appeal was untimely and the case was moot.
On the timeliness issue, under administrative rule R340.1725(1), a party may appeal to MDE for a state review Awithin 25 days of receipt of the decision.@ The court held that an appeal is barred if a party does not comply with the applicable timeline and the court lacks jurisdiction to review the decision of the state-level review officer.
The question then became whether the parents= appeal was timely. The parents originally faxed their letter of appeal to MDE on September 28, which was 21 days after they received the hearing officer=s decision. MDE requested additional information that was not received until October 10, some 35 days after the parents received the decision. However, MDE sent the parents two separate letters indicating the appeal was received on September 28. The court stated that there was a Asignificant argument@ that the appeal was not properly filed until October 10, but because of MDE=s Aambiguous@ actions that Acaused a significant misunderstanding as to the deadlines for appeal,@ the court ruled that the appeal was timely.
Turning to the mootness issue, the court ruled that all of the parents= claims except reimbursement for the private placement and attorney fees were moot because of the unilateral private placement. To obtain reimbursement, the parents would be required to prove the student=s IEP denied FAPE and that their private placement was appropriate. Because these issues had not been addressed by either the hearing officer or review officer, the court remanded the case to the hearing officer for a determination of whether the student was denied FAPE by an inadequate IEP. Alternatively, the court observed that the parents could request a new IEP and, in that process, request private placement.
Implications:
This decision squarely holds that the 25 day timeline to seek state-level review is jurisdictional. If the appeal is not filed with MDE within 25 days after the hearing officer=s decision is received, the appeal is barred. This issue had been in dispute until this decision.
The decision is also critical of MDE=s process for handling appeals. MDE needs to specify what information is required for a proper appeal so that all parties know both what is required and are able to determine when the appeal has been filed. The court=s decision implies that MDE should not consider an appeal properly filed until all required information has been provided.
The court=s mootness ruling is also significant, at least in cases such as this one where the parents were involved in a long-running dispute with the district before their unilateral placement. As the only issue before the hearing officer on remand is the appropriateness of the IEP in place when the unilateral placement occurred, all of the other prior issues should be barred.
In addition, under IDEA-97, even the surviving reimbursement claim is subject to reduction or denial if the unilateral placement denied the district an opportunity to address the parents= concerns through the IEP process.
Q. A student, outside of the hearing of his teacher, tells another student or staff member,
AI hate my teacher. I=m going to kill her.@ Is this a verbal assault against the teacher under the mandatory suspension/expulsion provision in MCL 380.1311a(2)?A. Probably not. The school board has discretion in how it defines a verbal assault and, so far as we are aware, no court has as yet considered this question. However, the statute applies to a pupil who
Acommits a verbal assault at school against a [teacher or other staff or] volunteer or contractor.@ An Aassault against@ a person connotes that the act is directed at that person and not through a third party. This language parallels the Aphysical assault@ language in section 1311a(1). The statute defines Aphysical assault@ as Aintentionally causing or attempting to cause physical harm to another through force or violence.@ Thus, a Aphysical assault@ clearly is a direct attack on the victim.In addition, the common law definition of an
Aassault@ is Aany intentional unlawful offer of corporal injury to another person by force, or force unlawfully directed toward the person of another, under circumstances which create a well founded apprehension of immediate contact, coupled with the apparent present ability to accomplish the contact.@ Smith v Stolberg, 231 Mich. App. 256 (1998). Thus, an Aassault@ requires that the perpetrator place the victim in fear of immediate injury and have the apparent ability to cause the injury. A threat of injury communicated to a third party outside the presence of the potential victim does not meet this definition.This does not mean that the student is immune from discipline. Even though the statement is not a
Averbal assault,@ it clearly is a threat. The district=s Student Code of Conduct should prohibit threats. If it does, the student can be disciplined for that offense.