May, 2000 ~ Volume 13, Issue 9
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:
Sixth Circuit Refuses to Apply Maximum Potential Standard.....................................1
Subpoenaed! What do I do?.........................................................................................1
Districts Not Responsible for Unilateral Placement, Tenth Circuit Rules....................2
FAQ's ...........................................................................................................................2
OSEP Policy Letters Sighted........................................................................................6
Sixth
Circuit Refuses to Apply Maximum Potential Standard
In a case from Michigan, the Sixth Circuit has refused to read a "maximum potential" standard into IDEA and has held that a placement provides FAPE if it is reasonably calculated to provide a child with educational benefits, in Soraruf v Pinckney Comm Schs, 32 IDELR 4 (6th Cir., 2000).
The student was diagnosed as autistic impaired and placed in a TMI classroom operated by the ISD. In June 1995, that program was discontinued. An IEPC placed the student for the summer in an SMI cross-categorical classroom also operated by the ISD. In August, the IEPC was unable to agree on a new placement and continued him in the SMI program. In October, the IEPC reconvened and considered two programs in the district, as well as one operated by the ISD and an EMI program in a neighboring district. The parents would only agree to the neighboring district program and that district declined to accept the student.
On November 2, the parents requested a due process hearing. On November 6, the district placed the student in a district EMI program it considered equivalent to the neighboring district's EMI program. The hearing officer ruled that the placement violated procedural requirements and ordered the district to convene an IEPC. The state review officer reversed, finding the placement provided FAPE and was not a unilateral decision because it was the only placement available after the neighboring district withdrew its offer.
In August 1996, the parents filed suit in federal district court alleging the school district had violated IDEA, ' 504 of the Rehabilitation Act, the ADA, ' 1983, and the Michigan Handicappers' Civil Rights Act. In August 1997, the court ruled that the district had violated the procedural requirements of IDEA by unilaterally deciding the student's placement and ordered an IEPC to be convened.
At this IEPC, the parents and district agreed to a new placement. This resolved the procedural issue but left the claim that the student had been denied FAPE for the prior two years. The court then ruled that, despite the procedural violations, the placement had provided FAPE because it satisfied the Rowley standard of being "reasonably calculated to provide him with educational benefits." The court dismissed the IDEA claim and all of the other counts.
On appeal, the parents contended that the district's procedural violation deprived the student of FAPE. The Sixth Circuit squarely rejected this claim and ruled that a procedural violation of IDEA, by itself, does not constitute a denial of FAPE. Rather, there must be a showing that the district actually denied FAPE.
The parents also contended that the placement denied FAPE because it did not maximize the student's potential. The Sixth Circuit observed that "maximum potential" is not well defined in Michigan law, may be more precatory than mandatory, and under circuit precedent FAPE does not mean "the absolutely best or 'potential-maximizing' education for the individual child." The Court thus ruled that a placement provided FAPE if it "was reasonably calculated to provide him with educational benefits." Applying this standard, the Court found that the district's placement provided FAPE.
Addressing the parent's ' 504, ADA, ' 1983 and Handicappers' Civil Rights Act claims, the Court found that they all alleged that the district had failed to provide the student with FAPE. Because the Court had already concluded that FAPE was not denied, it affirmed the dismissal of these claims.
Implications:
The Sixth Circuit has issued two important rulings in this case. First, it has held that a procedural violation of IDEA, in and of itself, does not constitute a denial of FAPE. Rather, there must be some actual substantive deficiency in the student's placement or program. In this case, the district court remedied the procedural violation by ordering the school district to convene an IEP Team meeting to determine placement. The Sixth Circuit found this process remedy adequately resolved the violation and denied any further relief.
Secondly, it has refused to read a higher Michigan standard of "maximum potential" into IDEA. The Court observed that "maximum potential" may not actually be a substantive standard and, in any event, is not well defined. Accordingly, the Sixth Circuit ruled that under IDEA the standard to be applied in determining whether a placement provides FAPE is the standard articulated by the U.S. Supreme Court in Rowley: whether a placement is "reasonably calculated to enable the child to receive educational benefits."
In the last two issues of OP News we discussed the various types of subpoenas and how they relate to confidential student information and privileges. In this last of the three part series, we will take various fact scenarios and discuss the appropriate method of response.
1) You are the principal of an elementary building. One Wednesday afternoon a person delivers to you a subpoena directing that you send copies of all the student's education records to the attorney. No release accompanies the subpoena. The case name appears to be a divorce action. What do you do?
The first thing to do is to look at the date on which the records are to be produced. The subpoena should give 14 days. The subpoena will also indicate what attorney has issued the subpoena. The first step will be to notify the special education director that you have received the subpoena. The special education director may decide that all subpoena issues should go to the district's attorney. If not, and you decide to handle the request on your own, a telephone call to the attorney issuing the subpoena will probably shed light on what exactly is being requested, who is requesting it, and what it will be used for. Remember, you may not give personally identifiable information over the telephone without a release. However, you may ask questions to clarify what the attorney is looking for. If the attorney is representing one of the parents, a simple request of the attorney to provide a written release signed by the parent will make your job easier. The attorney should be willing to provide such a release. Also advise the attorney that notice must be provided to the other parent that the records are being disclosed pursuant to the subpoena. If a proper release is received, the records may be disclosed to the attorney without a subpoena.
Following this telephone call, a telephone call or preferably a letter must be sent to the other parent (in a divorce action) notifying him or her that you have received the subpoena and will be providing the records on a certain date unless the parent take action to set aside the subpoena. Give the other parent at least a week's notice, if possible, before sending the records to allow the parent an opportunity to take such action. If timelines are short, a telephone call, with appropriate written documentation of the call, may suffice. Once the notification has been provided, you should copy the records and send them pursuant to the subpoena on the date requested (assuming they gave you the proper number of days), unless you receive an order from a court setting aside the subpoena and releasing you from its directive. Make sure that all telephone calls and methods of notification are appropriately documented in the student file.
2) You're the same principal as in the previous example. This time, however, the person hands you the subpoena and asks you to immediately produce the records, indicating that he or she will wait while you copy them. What do you do?
The first thing that you should do is explain to the person in your office that the records are confidential, and protected by federal law. You may also want to remind the person that you are to be given 14 days notice to provide records under a subpoena according to the Michigan Court Rules. Many times, however, the person delivering the subpoena will be a clerical support person acting on the direction of the attorney. If this is the case, a telephone call to the attorney requesting additional time is appropriate. Most times the attorney will agree, and you would merely follow the same procedure as in the above example. If the attorney needs the records before the expiration of 14 days, you may attempt to accommodate such request by expediting your notice to the parents and/or asking the attorney to obtain a validly executed release.
In any event, you should tell the person in your office waiting for records that the records can not be produced immediately, and send the person on his or her way. You should then notify the parents (just as in the above example) of the subpoena and its request for information, and that such information will be provided pursuant to that subpoena unless they take action to have the subpoena set aside. You should then copy the records and provide them in a reasonable time.
3) You receive a "form" in the mail purporting to be a subpoena from a business known as "Record Copy Services." This form directs that a person bring "all education records" of a particular student to their offices to be copied. Their offices are in Detroit, and you are in northern Michigan. What do you do?
Under the Michigan Court Rules, you are not required to appear and produce the records outside the county or counties in which the district is located. Even though the subpoena does not comply with the Court Rules, however, it must be honored unless a motion is filed with the court challenging the subpoena. These "form" record subpoenas are issued routinely by companies attempting to gather records for discovery purposes in lawsuits. Generally, the company does not want you to appear in person with the records, but rather mail the records to it for copying. Original records should never be mailed. Usually a telephone call to the attorney issuing the subpoena objecting to the distant location and referring to the court rule will result in the deposition being moved to a more convenient location. Alternatively, the company or attorney often will agree to allow you to mail copies of the records rather than provide the original records and generally will agree to reimburse the costs of copying. Most of the time the attorney simply wants copies of the records and an agreement to provide copies directly to him or her upon being provided a proper release by a parent will result in the subpoena being withdrawn, if the attorney can obtain a release. If you are required to comply with the subpoena, follow the same notice procedures as in the first example.
4) You receive a subpoena directing one of your diagnostic staff to appear for testimony and to bring with them "any and all records" regarding a particular student. The subpoena requires your staff person to appear in two days at a courtroom at 9:00 in the morning, and "from day to day thereafter until excused." What do you do?
Subpoenas requesting direct testimony of school district employees are less frequently encountered than subpoenas requesting copies of records. Since each and every situation may involve unique circumstances, it is recommended that you contact district legal counsel to discuss the subpoena and the requested testimony. Some methods of dealing with privilege and testimony requests was discussed in the last issue of OP News. Issues such as witness fees, expert fees, travel time, mileage and scheduling of the testimony will only be discussed with the attorney issuing the subpoena, in addition to issues relating to privilege and confidentiality. Such matters are best left to your district counsel. Often a fairly specific time for the person to testify can be arranged so that the person is not forced to waste time waiting to be called.
School districts are more and more frequently receiving subpoenas. While every situation cannot be addressed in the format of a short newsletter article, we hope that the information provided over the last few issues is helpful in assisting your district in dealing with such requests.
Return to the top
Districts
Not Responsible for Unilateral Placement, Tenth Circuit Rules
When a parent unilaterally placed her son in a residential placement to avoid his incarceration by the court and then requested a due process hearing when two school districts refused to fund the placement, the Tenth Circuit ruled in favor of the school districts in Joshua W. v Unified Sch. Dist. 259 Bd. of Educ., 32 IDELR 137 (10th Cir, 2000).
The student was born in 1978 and has been eligible for special education since 1985. In 1980, his parents divorced and custody was awarded to his mother. In 1988, the student moved in with his father and has not lived with his mother since, although she continued to support him financially.
The student and his parents resided in the Wichita Unified School District (Wichita USD). In November 1994, an IEP team recommended placement in an alternative day school. His parents consented to the IEP.
In January 1995, he quit attending classes. He lived in numerous places, in and out of state, and in February 1995, was confined to a juvenile facility for approximately six months.
In March 1995, his mother changed her residence from the Wichita USD to the Andover USD. His father also moved out of the Wichita USD in the Spring of 1995. In July 1995, the student spent a period of time in a hospital and in an out-of-state residential facility for substance abuse treatment.
On September 1, 1995, he threatened his mother with a knife while she was driving him to a military academy. Criminal charges were filed, resulting in a guilty plea. He was placed in jail and then in an out-of-state military academy prior to sentencing, which was scheduled for November 20, 1995.
In early November 1995, his mother contacted Three Springs Outdoor Therapeutic Program, an out-of-state residential school, to inquire about enrolling the student. On November 4, 1995, she completed an application form for Three Springs and subsequently placed several telephone calls and purchased airline tickets.
On November 17, 1995, the mother called Wichita USD to discuss the student's re-entry into the district. At this point, he had not attended a district program since January 1995. The district informed her that he should enroll in the alternative day school, since this was the last placement under his IEP.
The duration of his current IEP ran from November 18, 1994 to November 18, 1995. Therefore, a meeting was scheduled for November 20, 1995. At this meeting, his mother filled out releases in order for the district to obtain information regarding the last ten months. The district informed the parent that after the additional information was obtained, the IEP team would be reconvened to discuss placement.
The student's mother requested residential placement at the November 20, 1995 meeting. The district reiterated the need to gather information prior to making a placement recommendation. The parent never informed the district about the pending court action or that she already planned to place the student in Three Springs. Nor did she inform the district that neither she nor the student's father currently lived within the Wichita USD.
Later that same day, the student was sentenced to twenty-four months probation, with his probation conditioned upon his entering and successfully completing Three Springs. His mother placed him at Three Springs the next day.
The mother never returned the district=s telephone calls inquiring as to the student's whereabouts. In December 1995, she filed a request for a due process hearing against Wichita USD. Later, she also sought that Andover USD (the mother=s current district of residence as of March 1995) be added as a party to the administrative hearing.
The local due process hearing officer refused to join Andover USD as a party. The issue in the local hearing was whether Wichita USD was responsible for the student's special education. The hearing officer found that, under state law, he was not a resident of the Wichita USD in November 1995, since both parents had moved out of the district. A state review officer affirmed. The parent appealed to federal district court, which held for Defendants. The parent then appealed to the Tenth Circuit Court of Appeals.
The Court first addressed whether the mother=s resident district should be a party. The Court concurred with the district court, finding that under state law, the student's residency controls and that Plaintiffs failed to plead any residency in the Andover USD (Plaintiffs= complaint stated that he had Aresided all his life in the ... Wichita USD@).
The Court then turned to whether the Wichita USD was responsible. The Court concurred with the district court=s determination that in November 1995, he was not living with a parent or a person acting as a parent in the Wichita USD. Furthermore, although Plaintiffs asserted that he had been living with a sister within the district, the Court held that, under state law, his sister did not constitute a Aperson acting as a parent.@ Therefore, he could not be considered a resident of the Wichita school district in November 1995.
The Court concurred with the district court=s statement that the parent=s actions Awere not prompted by a sincere effort to obtain a final decision from the [Wichita USD] regarding placement, but were simply seeking to manipulate the District into funding a placement upon which she had already resolved.@
The Tenth Circuit further found that the mother=s unilateral placement was Amanipulative, was not undertaken for education purposes, and essentially obstructed the IDEA process.@ The Court cited Wise v Ohio Dept of Educ., 80 F3d 177, 184-85 (6th Cir. 1996)(holding parents bear financial risk that unilateral private placement -- without consent of the school district and effort to change placement through the IDEA process--will not be reimbursed).
The Court affirmed the dismissal of the IDEA claim and concluded that the Plaintiffs= additional claims under '504 and '1983, which essentially repeated the IDEA claim, also failed.
Implications
This pre-IDEA-97 case is yet another example of courts losing patience with parents who attempt to use a district as a funding source rather than an educational source. In Joshua W., the parent had already decided that the student would be attending a specific residential school before she even approached the district.
In addition, she purposely kept information away from the district, not only with respect to the pending court action, but also regarding residency. Although she signed a release allowing the district to gather additional information, the very next day the parent placed the student in the residential school. Therefore, the parent effectively aborted the IEP process with respect to a placement determination based upon the student's present levels of performance and goals and objectives. While the case was actually decided on the residency issue, the Court made clear that it would have denied reimbursement in any event because of the parent's obstruction of the IEP process.
IDEA-97 and the implementing regulations provide additional support to districts who are similarly treated. Recall that for a student previously enrolled in a public school, reimbursement may be reduced or denied if: (a) the parents did not provide notice to the district at the most recent IEP meeting of rejection of the proposed IEP placement, their concerns, and their intent to enroll child in a private school at public expense; (b) the parents did not give written notice of their rejection, concerns and intent 10 business days before removal; (c) prior to removal but after receiving notice of the district=s intent to evaluate, the parents did not make child available for evaluation; or (d) a court finds the parent=s actions were unreasonable.
The district acted very promptly in this matter. The parent first contacted the district on November 17, 1995. The district realized that Joshua=s annual review was due on November 18, 1995 and immediately arranged a meeting on November 20, 1995, at which time releases were sought to gain additional information. One day later, the parent made the unilateral placement. The district was able to show that it had acted in good faith and that the parent had obstructed the IEP process.
Q. May a section 504 student be placed in an Ainterim alternative educational setting@ if he/she engages in misconduct involving weapons?
A. No. The Office of Civil Rights has not indicated that it is "adopting" all of the procedures set forth in the IDEA for Section 504 students. Therefore, IDEA provisions relating to interim alternative placements for students who possess weapons would not necessarily be adopted in relation to a Section 504 eligible student. A student eligible only under '504 who brings a weapon to school may be suspended for up to ten consecutive days (unless to do so would, in combination with prior cumulative days of suspension, create a pattern of exclusion). Before a change in placement (going over ten consecutive days or suspending to a point that there is a pattern of exclusion) the district must conduct a manifestation determination, much like under IDEA. An interim alternative educational placement could occur in a Section 504 weapon situation, however, by mutual agreement of district and parent or by the district obtaining a court order to that effect.
What if the misconduct involves the illegal use/possession of drugs?
Section 504 exempts from coverage students eligible only under '504 who engage in the illegal use/possession of drugs. They may be disciplined as any nonhandicapped student for this type of misconduct.
In the April OP News we reported that the Federal Register Contains a quarterly listing of OSEP IDEA clarification letters. We have now spotted summaries of both inquiries and OSEP responses on the National Information Center for Children and Youth with Disabilities (aka NICHCY) web page at http://www.nichcy.org. The summaries are organized by section of the IDEA statutory language and are presented on a series of training overheads.