April, 2001 ~ Volume 14, Issue 8
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:
Hearing Officer Upholds IEP Team Decision to Decertify......................................1
Court Enjoins MDE from Closing Comment Period on Rules Package..................1
OSEP Issues Guidance on Prior Notice Requirements.............................................3
OSERS on FERPA.....................................................................................................4
OSEP Okays Michigan's Inter-ISD School of Choice................................................6
Hearing
Officer Upholds IEP Team Decision to Decertify
In an interesting case where the district requested a hearing on the validity of its determination to decertify, the hearing officer concluded that the student was able to progress effectively in regular education without special education and thus was no longer eligible for special education services. The decision in Weston Public Sch Dist, 34 IDELR
&75 (SEA MA 2001) is another illustration of the point that eligibility requires more than a DSM IV label. It also is one of the first cases to specifically address IDEA-97 language that requires the IEP team to examine the extent to which the child=s disability affects the student=s ability to be involved in and progress in the general curriculum.The student was an eight year old third grader at the time of the hearing. He began receiving special education services in kindergarten and received varying levels of services in first and second grades. His IEPs in kindergarten and first grade centered on behavioral and motor issues. Beginning in second grade the focus shifted more to reading. His eligibility was based on a learning disability; in addition he had received a medical diagnosis of asthma and reactive hypoglycemia.
The second grade IEP provided for reading support in the resource room (learning center) four times per week for 30 minutes per session. The sessions were to start out one-to-one with the possibility of group instruction later in the year. By the end of second grade, the student was reading at an early third grade level with 98% accuracy. At the annual review IEP Team meeting in June, 2000, the parents agreed that the student had made progress, but believed it was not
Aeffective progress.@ They further reported that their son was frustrated in math because he was bored and unchallenged. They requested continued reading services and the initiation of services in math. On the basis of the regular classroom teacher=s report that the student was reading and spelling at grade level and was exhibiting excellent math skills and the special education teacher=s report that he was reading solidly at grade level and fully able to access regular classroom instruction without specialized instruction, the IEP Team determined that the student was no longer eligible for special education. The team did recommend a Section 504 accommodation plan to address health accomodations. The parents disagreed with the IEP Team determination, but did not request a hearing. Ultimately, after taking time to consider the Section 504 plan, the parents again rejected the IEP Team=s finding of no special needs. When another set of IEP/504 meetings in the fall of third grade again resulted in the parents= rejection of the district=s determinations, the district requested a due process hearing to determine the validity of its ineligibility decision.The hearing officer noted that the matter of eligibility requires a two pronged analysis: 1) Does the student have a disability recognized by state/federal special education law? 2) Does the student
=s disability so impair the child=s ability to progress effectively in the general curriculum that the student requires special education?The hearing officer noted that the dispute in this case centered on the second prong of the inquiry. In this regard, the hearing officer noted that Massachusetts rules/regulations define
Aprogress effectively in regular education@ to mean Amake documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accomodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Framework and the curriculum of the district.@ Guidelines issued by the Massachusetts Department of Education suggested that indicators for ineffective progress might include: not performing up to expected levels on standardized, criterion-referenced or curriculum-based assessments, or failing to earn promotion to the next grade level at the end of the school year.In reaching her decision that the student in this case was making effective progress in the general curriculum and that the student did not meet the second prong of the inquiry, the hearing officer relied on the following:
a. Performance date indicating that the student was performing above grade level expectations in math and spelling, between third and fourth grade in reading, and at third grade in writing without specialized instruction or modification to the curriculum.
Amonitored [the student=s] progress diligently,@ as well as the third grade special education teacher who Ahas been assessing and monitoring the student=s performance regularly since the beginning the the year.@b. Testimony of the second grade special education teacher who
c. Testimony of the third grade teacher (a 30 year teacher) who had
Aextensive experience teaching typically developing third graders@ plus Aknowledge of the individual student=s performance.@In contrast, the hearing officer gave little weight to the parents
= expert, a clinical psychologist with a background in special education, who spent only 12 hours testing the student and did not review recent student work samples or speak to direct service providers.Implications:
The morals of this story are multi-fold:
=s credibility more than data, especially when this can be graphed to show the rising slope of progress at or above the goal line.1. Nothing beats actual hands-on experience. Hearing officers will generally find experience a more credible basis than degrees in a dispute regarding performance.
2. Continually monitoring progress on goals/objectives is not only important for periodic progress reports, but IEP decision making, and as illustrated here, in due process hearings. Nothing enhances a service provider
3. A
Alabel@ does not guarantee special education eligibility.One further note. The hearing officer
=s decision does not indicate whether the district Areevaluated@ prior to the decertification. Remember, under IDEA-97, decertification triggers the reevaluation process. At a minimum, the IEP Team would need to conduct an evaluation review to determine what, if any, information would be necessary to address the continuing eligibility question.Court Enjoins MDE From Closing Comment Period on Rules Package
On Friday, April 27, 2001, Ingham County Circuit Judge Lawrence Glazer issued a Preliminary Injunction enjoining the Michigan Department of Education (MDE) from closing the comment period on the proposed special education rules until September 30, 2001.
In April, a lawsuit was filed against MDE seeking a Temporary Restraining Order (TRO) and Preliminary Injunction which would stop the Department
=s closure of the comment period on the new proposed rules. This lawsuit claimed that certain named persons with disabilities were unable to fully participate based upon MDE=s refusal to grant an accommodation, namely sufficient time for these persons to review, comprehend and comment on the rules. Prior to the lawsuit, a letter had been sent to the Department and State Superintendent Ellis requesting that the Department extend the comment period until September 30 as a necessary accommodation to permit persons with disabilities adequate time to review and comprehend the rules. No response was received and the lawsuit was filed.Initially, the Court issued a TRO which restrained the MDE from closing the comment period until a hearing was held on April 27. At the April 27 hearing, the Plaintiffs argued that the length of time provided for public comment was insufficient to enable persons with disabilities to actively or fully participate. Defendant MDE argued that the time allotted was in excess of what the federal government had provided for public comment when the IDEA regulations were being promulgated. MDE pointed to several activities and meetings which had been undertaken, attempting to fully inform the public as to the proposed rule changes, as well as the holding of ten public hearings in five locations across the state resulting in thousands of comments, verbal and written, being submitted. MDE also argued that many groups, including school district and parent groups, had held meetings and disseminated information to their members about the rules. Interestingly, MDE argued that even law firms had been disseminating information, and attached a copy of the March issue of OP News as an example of the information that had been provided to the public and stakeholders. While the Department argued that sufficient efforts had been taken to insure effective participation of the public, they admitted that requested copies of the rules in Braille and electronic formats had not yet even been produced, and would not have been distributed to persons requesting these formats until after the original deadline had passed.
The Court, in ruling on Plaintiffs
= motion, commended the Department for its efforts in attempting to draft rules that would comply both with state and federal law. The Court commented that the administrative rule promulgation process is difficult and time consuming, and complimented the Department for its attempts to utilize information which it had collected over the past six or seven years, including the Task Force recommendations, the federal changes in the IDEA and its regulations, and various unofficial drafts of rules. While the Department=s efforts over several years had been valiant, the Court found it shocking that the Department had given a mere 45 days for the public to read and synthesize 140 pages of complex rules. Finding irreparable harm would occur if the Department were permitted to close its public comment period and that extension of the comment period would not put an unreasonable burden on the Department, the Court granted Plaintiffs= request for a Preliminary Injunction. The Court ordered that the comment period remain open until September 30, 2001, and that the Department schedule at least one additional public hearing during the month of September to permit persons with disabilities the opportunity to obtain, review, comprehend and comment in a meaningful way.OSEP Issues Guidance on Prior Notice Requirements
The federal Office of Special Education Programs (OSEP) in a recent Letter to Zimberlin, 34 IDELR 150 (OSEP, 2000), concluded that a Connecticut statute requiring any issue raised in a due process hearing to be first raised at an IEP Team meeting was inconsistent with IDEA. OSEP observed that IDEA requires parents to give prior notice to the district when they intend to seek reimbursement for a private placement. However, the failure to give the district notice does not preclude the parents from proceeding to hearing. Rather, it potentially limits the amount of reimbursement that the parents receive. The district is required to give parents notice when it proposes or refuses to initiate or change the identification, evaluation or educational placement of a student or the provision of FAPE to the student and notice of their procedural safeguards. According to OSEP, these are the only notices that can be required and a state may not limit the issues that may be heard by additional notice requirements.
This Letter should not be read as holding that, as long as reimbursement is not at issue, parents can raise any issue they choose in a due process hearing. Hearings are limited to district Aproposals or refusals to initiate or change.@ Thus, for example, complaint issues are not hearable. Kuszewski v. Chippewa Valley Schs, 34 IDELR 59 (ED Mich, 2001).
In addition, courts with increasing frequency are holding that parents must give districts an opportunity to remedy any perceived problems in IEPs [Hines v. Tullahoma City Sch Dist, 28 IDELR 456 (6th Cir, 1998)] and that IEPs are to be developed cooperatively [Patricia P. v. Bd of Ed of Oak Park and River Forest High Sch Dist, 31 IDELR 21 (7th Cir, 2000)]. While both Hines and Patricia P involved claims for reimbursement, neither court indicated that its holding was limited to reimbursement claims. Certainly, the courts= rationale is applicable to any IEP and a failure to give notice may well be a defense to the district. Moreover, the district has a right to convene an IEP Team meeting at any time. Thus, when parents do raise an issue for the first time in a hearing request, the district should reconvene the IEP Team to consider it.
In response to a congressman=s questions regarding the privacy of student records under FERPA and the IDEA, the Office of Special Education and Rehabilitative Services (OSERS) reviewed several of the rules and exceptions applicable to the access and disclosure of student education records in Letter to Schaffer, 34 IDELR 151 (OSERS, 2000).
While the information contained in Letter to Schaffer is not necessarily new, several of the points in the letter bear repeating as districts attempt to comply with the laws and regulations applicable to the disclosure of student education records. Therefore, excerpts of the letter are highlighted below.
1. FERPA B Generally.
The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects a parent or eligible student=s privacy interests in the student=s education records. Specifically, FERPA affords parents and eligible students the right to inspect and review the student=s education records and seek amendment of those records. In addition, FERPA prohibits the disclosure of an education record or personally identifiable information contained in the record without the prior written consent of the parent or eligible student except in certain specific circumstances. The term Aeducation records@ is broadly defined as Athose records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.@ 20 U.S.C. 1232g(a)(4).
2. Does FERPA apply to all schools?
FERPA applies to all public elementary and secondary schools and most public and private post-secondary institutions. FERPA generally does not apply to private or parochial schools at the elementary and secondary level. However, if a public school district places an IDEA-eligible student at a private school in order for that student to receive FAPE, the records of that particular student are subject to FERPA and the public school that made the placement is responsible for complying with the Act and its regulations.
3. Does FERPA apply to state departments of education?
If a state educational agency (SEA) maintains education records on students who are or have been in attendance at any school of any educational agency or institution subject to FERPA, then upon request, the SEA must provide parents and eligible students with an opportunity to inspect and review the records they maintain.
4. Disclosure of information B Exceptions to the prior written consent rule.
In general, absent the prior written consent of the parent or eligible student, a school district may not disclose personally identifiable information from a student=s education record. However, there are several exceptions to this general rule.
E. Disclosure to comptroller general, attorney general, secretary of education, or state and local education authorities.
Prior written consent is not required to disclose education records to the above officials if such disclosure is Ain connection with an audit or evaluation of federal or state supported education program, or for the enforcement of or compliance with federal legal requirements, which relate to those programs.@ Information collected by these officials may not be redisclosed to another third party and must be destroyed when no longer needed for the purpose for which it was collected.
B. Disclosure to state juvenile justice agency.
FERPA allows disclosures to state and local officials to whom such information is specifically allowed to be reported or disclosed pursuant to state statute adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and such system=s ability to effectively serve the student whose records are released. In addition, disclosure is permitted pursuant to state statute adopted after November 19, 1974, if the disclosure concerns the juvenile justice system and such system=s ability to effectively serve, prior to adjudication, the student whose records are released, and the officials and authorities to whom such information is disclosed certify in writing to the educational agency that the information will not be redisclosed without the prior written consent of the parent of the student except as otherwise provided by law.
The Department has interpreted this provision to allow disclosures pursuant to state law adopted after November 19, 1974, only if the state has instituted a Ajuvenile justice system.@ According to OSERS, only two states, Florida and Illinois, have laws which have established such a system.
C. Disclosure in health or safety emergency.
FERPA also provides that a school may disclose information from a student=s education record without prior written consent in connection with a health or safety emergency. See, Section 99.36 of the FERPA Regulations. More specifically, FERPA provides that a school may disclose information from an education record to appropriate parties Aif knowledge of the information is necessary to protect the health or safety of the student or other individuals.@ The regulations stress that this provision is to be Astrictly construed.@ See, 34 C.F.R. 99.36(a) and (c). The Department has advised schools that disclosure under this provision is appropriate Awhen a situation presents imminent danger or when the situation requires the immediate need for information in order to avert or defuse certain unusual conditions or disruptions.@ Moreover, schools may share relevant information only with those parties whose knowledge of the information is Anecessary immediately to protect the health or safety of the student or other individuals in the school community.@ Typically, law enforcement or trained medical personnel would be considered the types of parties to whom information could be disclosed under this provision. OSERS also notes that this exception is not generally applicable where a parent is a participant and able to consent.
D. Disclosure of information B Local police or child welfare agencies.
There is no specific exception in FERPA that permits schools to disclose information to local law enforcement authorities. However, information may be disclosed under the following circumstances: 1) If the disclosure is for the purpose of a health or safety emergency; 2) If the disclosure is necessary in order to comply with a lawfully issued subpoena or court order; or 3) If the information is created and maintained by a law enforcement unit for a law enforcement purpose.
There is also no exception to FERPA=s general consent rule that specifically allows schools to disclose information from a student=s education record to a child welfare agency without consent. However, OSERS notes that other laws may permit disclosure of information from student education records to a child welfare agency if the child is a suspected victim of abuse.
E. Disclosure of information B Directory information.
Another exception to the prior consent rule deals with the disclosure of information that has been designated as Adirectory information.@ FERPA defines directory information as Ainformation contained in an education record of a student which would not generally be considered harmful or an invasion of privacy if disclosed.@ 34 C.F.R. 99.3. Directory information includes, but is not limited to student=s name, address, telephone listing, e-mail address, photograph, date and place of birth, major field of study, dates of attendance, grade level, enrollment status, participation in officially recognized activities and sports, weight and height of members of athletic teams, degrees, honors and awards received, and the most recent school attended.
In order to disclose Adirectory information@ to third parties, a school must give public notice of the types of information which it has designated as Adirectory information,@ the parent=s right to refuse to let the school designate any or all of the types of information about the student as directory information, and the period of time within which a parent has to notify the school that the parent does not want any or all of the information designated as Adirectory information.@ 20 U.S.C. 1232g(b)(5)(B); 34 C.F.R. 99.37(a). While the Department has not issued specific guidance on the dissemination of Adirectory information@ on school district web sites, the Department has informally advised school districts that they should consult with parents prior to placing properly designated directory information on school web sites due to safety concerns that parents might have.
5. What privacy protections exist in the IDEA?
The Individuals with Disabilities Education Act (IDEA) provides additional privacy protections for students who are eligible for special education and related services under the IDEA. Part B of the IDEA incorporates and cross-references FERPA. In addition, the IDEA regulations address the issue of destruction of education records. Each public agency must also have one official who is responsible for ensuring the confidentiality of any personally identifiable information and must train employees who are collecting or using personally identifiable information regarding FERPA and confidentiality issues.
OSEP Okays Michigan's Inter-ISD School of Choice
As you are aware, Section 105c of the State School Aid Act requires that, before a child with a disability can participate in an inter-ISD school of choice program, the enrolling district must have a written agreement with the resident district regarding the provision of FAPE to the student that includes an agreement on who is responsible for the costs. Shortly after its enactment, State Representative John Hansen requested an opinion from the Attorney General=s office regarding the legality of 105c. In the February 2000 issue of OP News we reported on Michigan Attorney General Jennifer Granholm=s February 24, 2000 opinion that the inter-ISD school of choice provisions did not violate IDEA, '504, or the equal protection guarantees of the United States or Michigan Constitutions.
About the same time Representative Hansen made his inquiry of Attorney General Granholm, parent attorney Stewart Hakola made a similar inquiry to the Office of Special Education Programs (OSEP) and the Office of Civil Rights (OCR) in the US Department of Education. While the Department=s response was dated March 29, 2000, it has only recently been published. Significantly, OSEP/OCR affirmed the validity of the 105c written agreement requirements: AWhile we understand your concern regarding the practical difficulties that districts may face in reaching an interagency agreement, there is nothing in either Part B, as amended by (IDEA-97), or '504 that prevents a state from requiring such agreements between resident and non-resident districts to ensure the provision of a free appropriate public education to children with disabilities.@