March 2000 ~ Volume 13, Issue 7
Ounce of Prevention News
Information and Ideas for Practical Problem Solving in Special Education
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In this issue:
Sixth Circuit Permits an Exception to The Exhaustion Requirement...........................1
Subpoenaed! What do I do?.........................................................................................1
Failure to Cooperate Forfeits Claim for Reimbursement, Seventh Circuit Rules........2
FAQ's ...........................................................................................................................2
Verbal Disclosure of Information Violates FERPA.....................................................6
Sixth Circuit Permits An Exception To The Exhaustion
Requirement
In a classic case of "bad facts make bad law," the Sixth Circuit has carved out a narrow exception to the IDEA exhaustion of remedies requirement in Covington v. Knox County School System, 32 IDELR 29 (6th Cir, 2000).
The parent alleged that between 1990 and 1994, when the student was 12 to 16 years of age, on several occasions he was locked in a "time-out room" that was approximately four by six feet, dark and "vault-like," with a concrete floor, no furniture, no heat, no ventilation and only one small window that was at least five feet above the floor. She further alleged that, on at least one occasion, the student was made to disrobe before being locked in the room and on at least one occasion, because of a lack of supervision and the long duration of the time out, he was forced to relieve himself on the floor and remain there with his excrement for a period of time.
On March 17, 1994, the parent filed an administrative complaint with the state department of education. The department referred the complaint to the school district, which denied some of the allegations and attempted to explain its actions but offered no relief. The parent then requested a due process hearing, alleging inappropriate discipline, including abusive confinement in a locked time-out room. Over three years later, the due process hearing still had not been held although the parent was largely responsible for the delay. In the meantime, the student had graduated with a special education diploma in May, 1996.
In April, 1998, the parent filed a complaint in federal district court against the school district under ' 1983. The complaint did not allege any violation of IDEA. Nonetheless the district court granted summary judgment to the school district on the basis that the parent had failed to exhaust her IDEA administrative remedies because use of the time-out room as disciplinary measure was mentioned in the student's IEP.
On appeal, the parent argued that exhaustion is only required when relief is available under IDEA and, because she was only seeking money damages which are not available under IDEA, she was not required to exhaust. The court noted that the Sixth Circuit had previously held that money damages are not available under IDEA or under ' 1983 for violation of IDEA. The court observed that, while it had not ruled on whether an independent ' 1983 claim was subject to the exhaustion requirement, most courts have held that such a claim is, in part because the IDEA process may afford appropriate relief even if it is not the relief requested by the parent (e.g., compensatory education rather than damages).
Exhaustion is not required, however, if it would be futile or inadequate. Because the student had already graduated, the court found that there was no relief available through the administrative process and thus exhaustion would be futile. The court stressed the "unique circumstances" of the case B the student having graduated B and distinguished it from cases where parents unilaterally remove their children from the public schools when the appropriateness of the placement is still an issue. The court held that seeking money damages does not automatically excuse exhaustion but exhaustion is futile when money damages are the only remedy capable of redressing the inquiry.
Implications:
Although the court does not discuss the effect of the long delay in holding the due process hearing, the delay in fact was critical to the outcome. The request for hearing was still outstanding and had been pending for over a year when the district graduated the student. Once the student graduated, the district presumably had fulfilled its FAPE obligation to him and thus compensatory education or any other relief that could be awarded in an administrative proceeding was no longer available.
Courts are reluctant to leave a plaintiff without any remedy. So long as some relief is available under IDEA, courts tend to find, as the district court did in this case, that any claim related to the provision of special education is an IDEA claim. However, money damages cannot be recovered for an IDEA claim. Thus, when money damages became the only possible remedy, the Sixth Circuit found the parent had asserted an independent claim under ' 1983 for violation of the student's civil rights B a claim for which money damages can be awarded.
The two lessons to be learned from this case are: do not let requests for due process hearings drag on and resolve any pending disputes, if possible, before graduating students. Here, the court acknowledged that the delays in the administrative process were largely attributable to the parent, but that did not affect the outcome. Even with the long delay, had the district resolved the dispute in conjunction with graduation, the case would still have ended. By leaving the dispute unresolved but terminating the student's eligibility for services, the district remained exposed to liability but the available relief became much more limited.
Subpoenaed! What do I do?
Recently school districts have been dealing more and more with subpoenas requesting various records and/or testimony. This article, provided in three parts, will describe general subpoena responsibilities and obligations. The first part of this series will explain the differing types of subpoenas, the various authorities under which subpoenas may be issued, and the types of information that can be requested. The second portion, in April's OP News, will discuss how subpoenas relate with other statutory issues such as confidentiality and privilege. The last portion, which will appear in the May issue of OP News, will be a Q&A format discussing specific situations.
Types of Subpoenas
A subpoena is an "order to appear" and commands the person subpoenaed to appear at a designated time and place to testify and/or produce documents. A subpoena may be issued by a court or in some administrative hearings. Refusal to obey a properly issued subpoena can result in the person being held in contempt of court.
A subpoena issued by a court will usually be on a form. It will have the name of the court and the caption and number of the case at the top. A subpoena in an administrative hearing generally will be a typed document, with the name of the agency and the caption and number of the hearing at the top. Any subpoena will be directed to a specific person by name or title and order the person to appear at a time and place to testify and/or produce documents. If it requires production of documents, it must state what documents are covered. A subpoena for documents is often referred as a subpoena "duces tecum," which means "bring with you."
A subpoena issued by a court may be signed by the judge, the court clerk or an attorney. The "signature" does not have to be an actual handwritten signature. The name may be stamped or typed or printed. The statutes governing some administrative proceedings, such as teacher tenure, specifically authorize a "presiding officer" or hearing officer to issue subpoenas in the name of the agency. An administrative hearing subpoena will be signed by the hearing officer. Occasionally, an attorney will sign a subpoena in an administrative hearing. There is no express authority for an attorney to sign an administrative subpoena and it would be of doubtful validity.
In special education due process hearings, hearing officers sometimes issue subpoenas even though there is no express authority for a special education hearing officer to issue a subpoena. Some hearing officers have assumed authority under Rule 340.1725e(1)(c), which authorizes a hearing officer to control the conduct of parties or participants in a hearing. Regardless of whether a hearing officer has authority to issue a subpoena, both the IDEA regulations and state administrative rules give parties the right to compel the attendance of witnesses, which implies that the other parties have a corresponding duty to produce witnesses who are under their control without requiring a subpoena. In any event, as a practical matter, persons served with hearing officer subpoenas seldom question their validity.
A subpoena may be directed to a "party" or "nonparty" to a lawsuit or administrative hearing. The term "party" includes employees and officers of an entity that is a party, such as a school district. A party usually is represented by an attorney. A party or employee of a party receiving a subpoena should immediately notify the attorney and proceed as instructed. A nonparty may wish to consult an attorney and should consult if he or she has any objection to or reservation about complying with a subpoena.
Subpoena for Trial or Hearing
A subpoena issued for trial or for an administrative hearing commands a person to appear and testify and/or produce records in open court or at the hearing. The witness must be given reasonable advance notice (at least two days). The subpoena will specify a date and time but may be continuing (i.e., also state "from time to time and day to day thereafter until excused"). If the subpoena is continuing, a witness who does not testify on the scheduled date is required to return on succeeding trial or hearing dates until the witness does finish testifying.
If a subpoenaed witness notifies the party issuing the subpoena that it is impossible for the witness to comply, the party must either excuse the witness or schedule a hearing before the court to determine whether the witness will be compelled to appear. Attorneys for parties usually try to accommodate witnesses so that they are not greatly inconvenienced or forced to waste time waiting in court to be called. A telephone call to the attorney can often result in an agreed time or, if the witness is reasonably close to the courthouse or hearing location, an agreement that the witness will appear on very short notice and the attorney will call the witness when it is the witness's turn to testify.
Discovery Subpoenas
A witness in a matter pending in court may also be subpoenaed for "discovery." This process, as the term indicates, is to enable parties to learn information prior to the actual trial. Discovery usually is not permitted in administrative proceedings.
A "discovery" witness will be subpoenaed for a "deposition," which is sworn testimony taken in an informal setting outside of court, often the attorney's office. The subpoena will be for a specific location, date and time. The witness usually will be the only one scheduled for that time and will appear, testify, and be done unless the testimony cannot be completed in one day.
A "discovery" subpoena may require that the witness also produce documents for inspection and copying or simply produce documents for inspection and copying with no testimony being taken. When documents are requested, the subpoena must be served at least 14 days prior to the date specified for production.
In "discovery" depositions, under the court rule the witness can only be required to appear in a county where he or she resides, is employed or does business. However, the subpoena will often specify a distant location, particularly when only documents are sought. Even though such a subpoena does not comply with the court rule, it must be honored unless the witness files a motion with the court challenging the subpoena. A telephone call to the issuing attorney objecting to a distant location and referring to the court rule will usually result in the deposition being moved to a more convenient location. Often, all the attorney really wants is copies of the documents and an agreement to provide copies will result in the subpoena being withdrawn.
Privilege and Confidentiality
Responding to a subpoena may implicate other statutes and regulations. When testimony is sought, various privileges may apply that limit the testimony that can be given. When documents are requested, they often are subject to various confidentiality provisions. In particular, FERPA will apply to all student education records. If the student is disabled, the confidentiality provisions of the IDEA regulations and the Michigan Revised Administrative Rules for Special Education will also apply. Privilege and confidentiality will be the subject of next month's article.
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Failure
to Cooperate Forfeits Claim For Reimbursement, Seventh Circuit Rules
Parents who do not allow a school district a reasonable opportunity to evaluate their disabled child forfeit any claim for reimbursement for a unilateral private placement, the Seventh Circuit has ruled in Patricia P. v. Bd. of Ed. of Oak Park and River Forest High Sch. Dist. No. 200, 31 IDELR 211 (7th Cir. 2000).
The student had a history of emotional and behavioral problems. At the end of eighth grade the elementary and high school districts jointly conducted an evaluation and developed an IEP for ninth grade that placed the student in a behavior disorder resource program with 30 minutes per week of social work services. The parent rejected the placement and enrolled the student in a parochial school that provided no special education. The parent did not seek any reimbursement for this placement.
The parochial school refused to allow the student to return for the following year because of behavior problems. The parent enrolled the student in the district but then immediately placed him in a private out-of-state residential school where he remained for the rest of high school.
The parent almost immediately requested a due process hearing, seeking reimbursement. The hearing officer dismissed the request on the basis that the unilateral placement deprived the district of an opportunity to conduct an evaluation.
Rather than appeal, the parent requested a second hearing. That hearing officer conducted a full hearing but ultimately agreed with the first hearing officer. The state review officer affirmed.
The parent brought suit in federal district court. The district court granted the school district's motion for summary judgment on the basis that the ruling in the first hearing precluded the second hearing and, in any event, the parent's lack of cooperation barred her claim for reimbursement. The district court also denied the parent's request for discovery.
On appeal, the Seventh Circuit observed that the U.S. Supreme Court ruled in the Burlington case (471 US 359) that parents are entitled to reimbursement for a private placement if it is determined that such placement, rather than a proposed IEP, is proper under IDEA. The Court found, however, that IDEA requires "some minimal cooperation." In this case, immediately after enrolling the student in the district, the parent sent him out-of-state and never made him available for an in-state evaluation and accordingly had denied the school district a reasonable opportunity to conduct an evaluation and fulfill its obligations under IDEA.
The Court held that "parents who, because of their failure to cooperate, do not allow a school district a reasonable opportunity to evaluate their disabled child, forfeit their claim for reimbursement for a unilateral private placement." The Court also affirmed the denial of discovery because the parent sought it to prove the private placement was appropriate. Because she had forfeited any claim for reimbursement, such evidence was irrelevant.
Implications:
The emphasis of the courts and hearing officers in this pre-IDEA-97 case on the refusal of the parent to make the student available for evaluation following the initial out-of-state placement is a little surprising because the district had done an evaluation one year earlier and there is no indication of any significant change in circumstances. The real basis for the ruling appears to be the parent's adamant and chronic refusal to cooperate in developing an IEP.
This case is probably the most forceful ruling to date that both parents and the district have a duty to cooperate in evaluating and developing IEPs for students: "this Court will look harshly upon any party's failure to reasonably cooperate." Parents and districts both need to heed the message. Courts are becoming increasingly impatient with litigants they view as obstructionists and are tending to rule summarily against them.
Q. If a student with a disability attends both a public school and a private school under a "shared time" arrangement, is the public school required to follow the same rules and regulations for disciplining the student as it would for a full-time student?
A. Yes. The student is considered to be a part-time public school student. While in attendance at the public school, he or she has the same rights as any other student. A district must follow the procedures set forth in IDEA when disciplining an IDEA-eligible student. Similarly, if the student is eligible under ' 504, the district must follow the procedures required by ' 504 when disciplining the student. The fact that the student may also attend a private school for part of the school day does not affect the district's responsibilities.
Verbal Disclosure of Information Violates FERPA
When people think of disclosing educational records and the Family Educational Rights and Privacy Act (FERPA), it is the providing of written records that generally comes to mind. However, as the Family Policy Compliance Office (FPCO) made clear in a recent case, verbal disclosure of information is also covered by FERPA. School Administrative Dist. #75, 31 IDELR 222 (FPCO 1998).
A classroom teacher of an eighth grade student with a disability made comments toward the student, in response to the student's misconduct. Allegedly, the teacher muttered, "I don't care if he is disabled . . . it's his problem and not mine, and I don't have to deal with it." Such comments were heard by other students in the classroom.
The parents filed a complaint alleging violation of FERPA, specifically that the teacher disclosed personally identifiable information from a student's educational record without prior written consent. Following an investigation, the FPCO substantiated the allegation and determined that the verbal disclosure violated FERPA.
Implications:
In its discussion, the FPCO looked to the regulations defining an educational record as being a record which directly relates to the student and is maintained by the educational agency. A record is further defined as meaning any information "recorded" in any way. When one typically thinks of "records," however, one envisions paper documents (or computer media documents) maintained in a "file."
The regulations define a "disclosure" to mean the "release, transfer or other communication of personally identifiable information contained in education records . . . " It is important to remember that verbal disclosure of information which is contained in the education record (whether obtained from that source or not) violates FERPA unless that information is generally known independently from the record reference, e.g., the student has an obvious disability which would be recognized on sight. Teachers and service providers must be cautioned not to disclose information regarding a student or a student's disability through "casual conversation" or otherwise. It must also be remembered that the "intent" of the person making such disclosure is not dispositive. Casual conversations with those who do not have a legitimate educational interest, e.g., with other school personnel in social settings, such as grocery stores or restaurants, or even innocent disclosures to one's own spouse run afoul of FERPA. Districts should provide training and information to personnel to assure that such "innocent" disclosures do not occur.