June, 2000 ~ Volume 13, Issue 10
Ounce of Prevention News
Information and Ideas for Practical Problem Solving in Special Education
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In this issue:
First
Circuit Affirms Dismissal of a Parent's Section 504 Claim of Retaliation
for
Failure to Exhaust IDEA Remedies..............................................................................1
OSEP Offers Guidance on Parentally-Placed Private School Children........................................................................................................................1
Legislature Expands Choice Options and Obligations.................................................2
FAQ's ...........................................................................................................................2
A parent's claim under '504 that the school district retaliated against her for her complaints regarding implementation of her son's IEP was properly dismissed for failure to exhaust IDEA administrative remedies, the First Circuit has ruled in Weber v. Cranston Sch. Comm., 32 IDELR 141 (1st Cir., 2000).
The parent's lawsuit was filed following a lengthy series of contentious dealings between the parent and school district. The student's initial IEP included phonics instruction. After a series of meetings with district staff regarding her concerns about his phonics instruction, the parent filed an administrative complaint with the state department alleging that his IEP was not being implemented and she was not being provided quarterly progress reports. The department ruled for the district.
By agreement, the student was transferred to a different district school. Shortly after, the parent met with school staff. Following the meeting, she filed a second administrative complaint with the state department, alleging the district had denied her access to her son's education records. The department again ruled for the district.
Shortly after, the district gave the parent access to her son's cumulative record file and a confidential file that contained a handwritten note stating "Agenda - Put parent on defensive," "shut her down" and a reference to a "restraining order." The parent filed a third administrative complaint, seeking removal of the note. The district contended the note resulted from a meeting held to discuss ways to defend against parent harassment of the district. The department ordered removal of the note and provision of a "good faith" hearing for her to express her grievances.
The parent then requested that her son be "declassified" as a disabled student and requested mediation. At mediation, the district refused to "declassify" the student. After mediation, she filed a complaint with a different state agency that had state law authority similar to OCR's, alleging denial of access to her son's records, the refusal to terminate the IEP, and the district's lack of good faith. She also filed a second complaint on behalf of her daughter. That agency found the district's actions were retaliatory. The district appealed and the appeal apparently is still pending.
The parent then requested an IEE, which found the student to be far above grade level in reading and spelling and at grade level in math. The following September, the parent placed her son in a private school. She then requested that he be "declassified" and the district did so.
The parent filed a multi-count complaint in federal district court, alleging violations of IDEA, '504, the ADA, ''1983 and1985, and the First, Fourth and Fourteenth Amendments. The district court dismissed all of the claims.
The parent only appealed the dismissal of her '504 claim that the district retaliated against her for her complaints regarding implementation of her son's IEP by denying her access to her son's school records, restricting her communications with his teachers, and threatening to report her to the state child welfare agency. The district court dismissed this claim as duplicative of other claims that had been dismissed and for failure to exhaust IDEA administrative remedies.
The First Circuit first considered the school district's contention that the parent could not assert a retaliation claim under '504 because she herself was not disabled. Section 504 incorporates the remedies provided in Title VI of the Civil Rights Act of 1964. The Title VI regulations provide a remedy for any person suffering retaliation for seeking to vindicate the rights of a person protected by the Act. Since the parent asserted that she was retaliated against for asserting her son's rights, the Court found she could assert her claim under '504.
The Court affirmed the dismissal of her retaliation claim, however, for failure to exhaust IDEA administrative remedies. IDEA authorizes a parent to request a due process hearing on any matter "relating" to the identification, evaluation, educational placement or provision of FAPE for a child with a disability. The Court found that her retaliation claim was literally "related." More importantly, the Court found the claim was within the "zone of interests" protected by IDEA because, under IDEA, parents play a central role in assuring their child receives FAPE and IDEA protects the rights of disabled children and their parents.
The Court suggested the parent might nonetheless have avoided the exhaustion requirement based on futility because it doubted that a hearing officer could grant any relief to her on her retaliation claim. Since the parent had not argued for futility, however, the Court declined to excuse the exhaustion requirement.
The Court also rejected the parent's contention that her numerous administrative complaints satisfied the exhaustion requirement. The Court held that only exhaustion of the due process hearing procedures satisfied the requirement and she had never requested a hearing.
Implications:
OCR has long accepted and ruled on parent complaints of retaliation for attempting to assert the rights of their disabled children even though the parent him or herself is not disabled and is not covered by '504. The First Circuit has now joined several other courts in affirming that such claims can be properly brought under '504.
Of particular interest is the Court's broad application of the IDEA exhaustion requirement through its "zone of interests" analysis. The Court cited the numerous provisions in IDEA for parental involvement and observed that IDEA ensured that the rights of children with disabilities and their parents are protected. Under the First Circuit=s analysis, virtually any claim related to the education of an IDEA-eligible child, including a parent claim of retaliation, would fall within IDEA's "zone of interests" and be subject to the exhaustion requirement. It remains to be seen whether other circuits, including our own Sixth Circuit, adopt the Azone of interests@ interpretation.
In light of this broad ruling, the Court's gratuitous suggestion of futility is surprising. The Court expresses doubt that a hearing officer could award the particular relief sought and indicates exhaustion may thus be futile. Numerous cases, including the Sixth Circuit in Covington v. Knox County School System, however, have found that requests for money damages, which are not recoverable under IDEA, do not render exhaustion futile because the adequacy of the relief that is available is not dependent on what the parent wants. For example, compensatory education, rather than money, might be adequate. At least prospectively, a hearing officer might well be able to address retaliation concerns as well.
OSEP Offers Guidance on Parentally-Placed Private School Children
On May 4, 2000, the Office of Special Education Programs (OSEP) of the United States Department of Education issued a memorandum to the field regarding services to children with disabilities placed by their parents at private schools. Attached to the memorandum are 45 Q&As regarding services to these children. The memorandum and Q&As are available on the internet at www.ideapractices.org/ideaquests/obligations.htm.
The OSEP memorandum explains that private school children can be broken into two separate groups: Group one consists of children placed in the private school by a public agency, such as a local or intermediate school district, for the purpose of delivering a FAPE. The second group are children placed in the private school setting by their parents. This second group is further divided into children placed in the private school setting by their parents because they dispute that the public agency has made a FAPE available to the child and children placed in the private school by parents as an educational choice when FAPE is not at issue.
The 45 Q&As were expressly designed to apply to the children placed in the private school setting because of the parents' educational choice. However, the guidance does include some discussion regarding children placed in the private school, where a FAPE has not been made available to the public agency.
Children Placed by Public Agency
In the 1997 amendments to IDEA, Congress included statutory provisions that reflect OSEP's longstanding interpretations of public agencies' obligations to parentally-placed private school children. In 20 USC ' 1412(a)(10), IDEA 97 includes specific provisions to address each of the groups of children discussed above. With respect to children placed in private schools by the public agency to provide special education and related services so that a FAPE can be delivered, the statute and implementing regulations make clear that those services must be provided at no cost to the parents and, generally, these children have the same rights as children with disabilities placed in the public school setting. 20 USC ' 1412(a)(10)(B); 34 CFR 300.349.
Parent Placed Children B FAPE Disputed
Children placed in private schools by parents who dispute that a FAPE has been made available by the appropriate public agency are covered by 20 USC ' 1412(a)(10)(C)(ii)-(iv) and 34 CFR 300.403(b)-(e). If a hearing officer or court finds that the public agency failed to make a FAPE available to the child in a timely manner before the child was enrolled in the private school, the public agency may be obligated to reimburse the parents or child for some or all of the costs associated with the private school placement.
Parent Placed Children B FAPE Not Disputed
For parentally placed children when FAPE is not at issue, under IDEA 97 Congress has required that public agencies providing services under Part B make provision for private school children with disabilities to participate in those programs by providing special education and related services consistent with their number and location in the state. 20 USC ' 1412(a)(10)(A)(i). Under this provision, local educational agencies (LEAs) must spend an amount equal to a proportionate share of their Part B funds on such services. 20 USC ' 1412(a)(10)(A)(i)(I); 34 CFR 300.452 and 300.453. The formulas to calculate the proportionate amounts each LEA must spend are set forth in 34 CFR 300.453 and are further explained in Q&As 14 and 15.
a. Proportionate Share Explained
The proportionate share is the ratio of eligible resident private school children (including those not being served) to the total number of eligible resident children. The resident LEA must include students attending private schools located outside the LEA in its count in determining the proportionate share. (Q&A 13). The LEA may spend non-federal funds to satisfy its obligation. The formulas only establish the amount. (Q&A 17).
b. LEA Child Find Responsibilities Clarified
IDEA 97, the federal regulations, and the guidance in the 45 Q&As make clear that one of the basic obligations of local educational agencies is to conduct "child find" activities with respect to all children, including those placed in private (including religious) schools. 20 USC ' 1412(a)(10)(A)(iii); 34 CFR 300.451. The "child-find" obligation requires each LEA to locate, identify and evaluate all private school children residing within the jurisdiction of the LEA, including children attending private schools located outside the district boundaries. (Q&A 11). The child-find activities for private school children must be conducted in the same or a comparable manner as those activities are conducted for public school children. (Q&As 3 and 6). Districts may not count the amount of funds they spend on child-fund activities toward the minimum proportionate share required by IDEA. (Q&A 2).
c. IEPs and Reevaluations
After initial evaluations of private school children are completed, eligibility and placement determinations must be made in the same manner as those for public school children. (Q&A 7). An IEP for each eligible child must be completed, UNLESS, the parents make clear that they intend to enroll the child in a private school and are not interested in a public agency program or placement. The LEA must offer to make FAPE available. (Q&A 8). Reevaluations for parentally-placed private school children must also be conducted in a manner comparable to reevaluations done for public school children with disabilities and must be done for all eligible students, including those identified but not being served. (Q&A 9). Like the amounts expended for child-find activities described above, the amounts a district spends on reevaluations for parentally-placed private school children within the district's jurisdiction cannot be counted toward the minimum proportionate share that must be used for services to these children. (Q&A 10).
Congress and OSEP have made it clear that parentally-placed private school children who reject an offer of a FAPE at or through a public agency have no individual entitlement to special education or related services under Part B. 20 USC ' 1412(a)(10)(C)(i); 34 CFR 300.454(a). Rather, this group of children is to receive only such special education and related services as the local educational agency decides to provide with funds equal to its minimum proportionate share of Part B funds. Of course, districts can decide to provide more services to these children than can be provided with the minimum proportionate share of Part B funds if they so choose.
d. Input from Representatives
Although the type of special education and related services a district provides to parentally-placed private school children is ultimately within the district's discretion, districts must seek and receive timely and meaningful input from appropriate representatives of the private school children. (Q&As 5, 23-25; 34 CFR 300.454(b)(1), (2) and (4)). It is unclear what "timely and meaningful input" actually is under the regulations. At a minimum, however, the input must be received before the district makes decisions that affect the private school children's opportunity to participate in the services. (Q&A 24; 34 CFR 300.454(b)(3)). The appropriate representatives are not specifically identified by the regulations but Q&A 25 provides examples of appropriate representatives and suggests that the term includes parents. There is no requirement that a district provide all of the special education and related services a parentally-placed child may need, nor are there any specific services a district must provide with its minimum proportion of Part B funds. (Q&As 5, 22, 26, 27, and 29). Districts may ultimately decide to only provide some direct services or, in lieu of direct services, to provide only consultive services, teacher training, materials or other indirect services, or to serve only some of the eligible children. (Q&A #5 26 and 27).
e. Individual Service Plan: Format and Content
Once the local educational agency decides what special education and related services it will provide to the parentally-placed private school children within its jurisdiction, it must develop a service plan for each child it will serve. (Q&As 5, 28 and 30; CFR 300.454(c)). The service plan is limited to the services that will actually be provided to the child. The LEA is not required to develop an IEP for the child but the service plan must follow the IEP format and requirements for the services that will be provided. (Q&A 33).
Although child-find activities cannot be restricted to only certain classes of children with disabilities, (Q&A 5), services actually provided by the district for parentally-placed private school children can be limited to certain classes of disabilities or portions of classes. (Q&As 5, 26, 29, and 31). Under IDEA-97, the location where the services will be provided is, generally, up to the school district. (Q&A 35). However, state law, the First Amendment, and other authorities need to be consulted when the location of the services is being discussed. (Q&A 35). Although transportation of parentally-placed private school pupils is probably not a related service, if transportation is required for the private school child to be able to access the service the district agrees to provide, transportation may be a necessary component of the service plan. (Q&A 36).
f. Remedies for Disputes
The remedies that may be available to resolve disputes about services to parentally-placed private school children depend on the nature of the dispute. As a general matter, disputes regarding child-find activities and identification and evaluation, including reevaluation, are subject to due process hearings and the complaint process. (Q&A 12). However, disputes regarding what services the district will provide for parentally-placed private school children with its proportionate share of Part B funds and the actual provision of those services under a service plan are not subject to due process since these children have no individual entitlement to such services under IDEA. (Q&A 34). These disputes may, however, be subject to the complaint process. (Q&A 34).
Implications:
Other issues and questions will, no doubt, be raised in the context of OSEP's guidance in this area. As always, OP News is not intended to give specific legal advice regarding individual fact scenarios that may arise. Districts should consult with counsel for specific legal advice with respect to issues that may come up.
OSEP=s Q&A is obviously intended to assist districts with implementation of IDEA. It does not address state laws that may impose other responsibilities. In Michigan, the Auxiliary Services Act is such a law. Unlike the IDEA parental placement/non-dispute situation described above, the ASA, either by express language and/or as interpreted by the Attorney General=s office, creates an individual entitlement to onsite (i.e., at the nonpublic school) IDEA/Michigan Mandatory related services (unless the particular onsite circumstances would run afoul of Establishment Clause parameters. In this regard see OSEP=s post-Agostini guidance, available at www.ed.gov/legislation/ESEA/feltguid.html or by calling our office.)
Legislature
Expands Choice Options and Obligations
In the 2000 amendments to the State School Aid Act (Enrolled Senate Bill 1044), the Legislature has enacted two major changes in the schools of choice provisions (sections 105 and 105c). Previously, the sections had provided that a student attending a district under schools of choice was given a preference for enrollment in the succeeding school year over other applicants if the district offered choice in the grade the student would attend. In 1999, the Legislature amended section 91b to provide that if a district allowed a nonresident pupil to enroll in the district, it must continue to allow the student to enroll until the student graduated from high school. This raised a question as to whether a choice student merely had a preference or a right to continue to enroll.
The Legislature has now expressly addressed the issue by repealing section 91b and amending sections 105 and 105c to provide that a district shall allow a student previously enrolled under schools of choice to continue to enroll until the student graduates from high school. Thus, once a district enrolls a student under schools of choice, the student has a right to continue to enroll in the district regardless of whether the district has space available in the student's grade or whether the district offers schools of choice at all. We are advised by MDE that it considers this amendment to apply to students who attended districts under schools of choice in the 1999-2000 school year.
The Legislature also amended the inter-ISD schools of choice provision (section 105c) to expand its application to all districts in contiguous ISDs. Thus, if a district offers choice under section 105c, it must accept applications from students residing in any district located in a contiguous ISD and cannot limit applications to students in adjoining districts.
The amendments raise disturbing questions: Do they create a de facto Asuper-residency@ status where nonresident students accepted under school of choice options end up with more rights than resident students? For example, does a nonresident school of choice student who moves out of the original intra or inter ISD situation that served as the basis for initial eligibility for school of choice continue to have school of choice rights versus the resident student who has no enrollment rights when residency ends? If the right to enrollments on initial school of choice enrollment and can never be divested except by the student=s election or graduation, what happens when a special education student who needs special transportation moves outside the original intra or inter ISD situation? In an inter ISD school of choice situation, what is the status of the contract requirement in successive years of school of choice enrollment? What if the school of choice student moves to a noncontiguous ISD? Does school of choice status survive? If there is a contract requirement, who are the parties to such contract?
In light of these amendments, districts may wish to revisit whether they will continue to participate in schools of choice.
Q. Is a student with a medical diagnosis of ADHD/ADD automatically eligible for special education/504 services?
A. No. A medical diagnosis of ADHD is not an automatic trigger to special education/504 services. To be eligible for special education, a student with ADHD must still meet one of the twelve eligibility categories for special education, such as OHI (chronic or acute health problem causing limited alertness that adversely effects educational performance) or by way of a "co-morbid" condition such as specific learning disability (SLD) or serious emotional disturbance (SED). See OSERS/OCR Joint Memorandum, 18 IDELR 116 (1991) and 1999 IDEA Regulations at 34 CFR 300.7(c)(9) which codifies the Joint Memorandum.
To be eligible for service under Section 504, a student with ADHD must demonstrate that he/she has a mental or physical impairment which substantially limits a major life activity, such as learning.
In addition, reliance on a medical diagnosis alone to establish eligibility would violate IDEA and 504's requirement of a multidisciplinary, multisourced evaluation. There have been a number of districts who thought they were being good do-bees by convening 504 meetings and developed 504 plans when parents came to them with a medical diagnosis, only to be found Ain violation@ when parents disagreed with the plans and filed 504 complaints with OCR. Moral: Following procedural safeguards is a critical component for developing/ assigning FAPE. Take the time to do appropriate evaluations.