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Information and Ideas for Practical Problem Solving in Special Education
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Inside this issue:
Western District of Michigan Federal Court Rejects Challenge to Use of Time-Out Box
A Federal District Court Orders Placement at a College to Provide FAPE
Compensatory Education Is Not Always An Appropriate Remedy, Tenth Circuit Rules
Private Schools That Receive Federal Funds Subject to 504
WESTERN DISTRICT OF MICHIGAN FEDERAL COURT REJECTS CHALLENGE TO USE OF TIME-OUT BOX
A challenge to the use of a time-out box in an elementary special education classroom has been dismissed by the federal district court for the Western District of Michigan for failure to exhaust IDEA administrative remedies, in Sabin v. Greenville Pub. Schs., 31 IDELR 161 (WD Mich., 1999).
The student was a seven-year-old emotionally impaired student, placed in a self-contained EI classroom in a regular elementary school building. He had a history of "extremely inappropriate" behavior on most occasions, including arguing, screaming, swearing, failure to comply or complete tasks, disruptiveness, destruction of property and "explosive and unpredictable behaviors." His IEP placed him in a program for EI students and provided that he would be subject to a behavior plan. His parent signed the IEP in agreement.
The behavior plan included instructing him to go to designated "cool-down" areas, including an in-class time-out behind a partition screen and, in cases of severe escalation, escorting him to a private quiet room until he calmed down. The parent did not sign the behavior plan but never challenged it prior to the incident leading to the lawsuit.
For most of the school year, students in the EI classroom were provided time-out in a classroom area separated by office dividers. Staff had difficulty containing students in the area and they would often try to knock down or destroy the dividers. In early April, the plaintiff student did destroy the time-out area. The district then constructed a time-out area in the classroom, approximately 6 feet by 6 feet, with fixed walls and a door with a large window, open at the top and well-lit, and outfitted with a beanbag chair.
On May 1, as a result of escalating violent behaviors, the student was placed in the time-out room. He immediately removed his clothes and urinated on the walls and floor. He wrapped his shoe laces tightly around his neck. The classroom aide then removed his clothes from the room but continued him in time-out. While still in time-out, his father entered the classroom and dressed his son and took him home.
The father complained to the police and Protective Services but both declined to take action. He then met with the building principal and district director of special education to complain and request the time-out box no longer be used with his son. Both indicated they felt use of the box was appropriate but agreed to no longer use it with his son. He did not file a written complaint or request anything further from the district.
Approximately two years later, the parent filed suit under ' 1983, alleging confinement in the time-out room was an illegal seizure of his son in violation of the Fourth Amendment and a taking of his liberty in violation of the Fourteenth Amendment. He also alleged state law claims of gross negligence, assault and battery, false arrest and imprisonment, intentional infliction of emotional distress and violation of the Persons with Disabilities Civil Rights Act. The school district moved to dismiss for failure to exhaust IDEA administrative remedies.
The court found that the gist of the complaint was that the district administered discipline in a manner not authorized by the IEP and this was an IDEA claim. The parent argued that he was only seeking money damages, which are not available under IDEA, and thus was not required to exhaust. The court found, however, that available relief is determined by the nature of the claim and governing law and not what the plaintiff demands and that he was required to exhaust. The court also rejected his alternative contention that his meeting with the principal and director of special education, at which he obtained all the relief he sought, constituted exhaustion.
The court also addressed the constitutional claims and ruled that the Fourth Amendment does not apply in a school discipline context and administering discipline permitted by the behavior plan did not violate the student's Fourteenth Amendment liberty interest. The court dismissed the federal claim for failure to exhaust IDEA administrative remedies and declined to exercise jurisdiction over the state law claims.
Implications:
This decision is consistent with a long line of cases holding that if the claim in fact is that the student's rights under IDEA were violated, IDEA administrative remedies must be exhausted. A parent cannot avoid the requirement by suing under some other statute or requesting relief not available under IDEA.
The administrative remedies are a due process hearing and state level review. To then bring suit, the parent must be "aggrieved," i.e., disagree with some substantive part of the review decision. Here the parent never invoked proper administrative remedies nor expressed any disagreement with the informal administrative resolution he obtained. He thus neither exhausted nor was aggrieved.
A particularly interesting aspect of the decision is the court's rejection of the parent's constitutional claims. Normally, having found a failure to exhaust, the court would simply dismiss and never address the actual claims. In this case, the court not only rejected the claims actually pled but also an Eighth Amendment cruel and unusual punishment claim not pled but suggested in one of the parent's briefs.
A Federal District Court Orders Placement
At a College to Provide FAPE
When a school district failed to provide a student with FAPE or locate an appropriate placement for the student for an extended period of time, a federal district court ordered the school district to pay college tuition as compensatory education to help the student obtain his high school diploma, in Sabatini v. Corning-Painted Port Area School District, 31 IDELR 183 (WD NY, 1999).
The student was diagnosed with generalized anxiety disorder, depressive disorder and a nonverbal learning disability. He was eligible for special education as multiply disabled.
In May, 1998, when he was already 20 years old, the district's committee on special education (CSE) recommended a residential placement. The school board rejected the placement and appointed a new CSE. The new CSE again recommended residential placement but the school board again rejected the placement.
The parent and student then requested a due process hearing, alleging that he had been denied FAPE for the prior three years. The district entered into a settlement agreement in which it agreed to actively search for a residential placement and to provide an appropriate program for the student for the 1998-99, 1999-2000, and 2000-01 school years or until he graduated, whichever came first.
During the next school year, the district failed to find a residential placement. The parent and student located a program at a college. The student was accepted and the district requested the state department to approve funding but funding was denied because the program was post-secondary and not approved. The district then refused the placement.
The parent and student requested a second due process hearing, alleging the district had failed to abide by the settlement agreement and failed to provide FAPE. At the hearing, the district conceded that it had not and could not provide FAPE. Not surprisingly, the hearing officer ruled for the student, finding the district had failed to provide FAPE, the student was entitled to compensatory education, and the proposed program was appropriate.
The district sought state level review but the review officer did not rule in a timely manner. The parent and student filed an action in federal district court.
The court rejected the district's claim they had failed to exhaust administrative remedies because the review officer had not ruled, finding the delay was prejudicial to them and beyond their control.
During the over one and one-half years from the May, 1998 CSE recommendation until the court's decision, the district provided only home-tutoring, which it conceded was not FAPE. Nonetheless, it contended that the student was entitled to receive FAPE only at a high school and it could not use IDEA funds to pay college tuition.
The student argued that he was seeking educational services to obtain a high school diploma. The court accepted this argument and found that the issue was not whether IDEA funds can be used to obtain a college degree but rather whether IDEA funds may be disbursed for college courses when the intent is to apply those courses to the obtaining of a high school diploma.
The court granted a preliminary injunction requiring the school district to pay the student's college tuition for the spring 2000 semester. The court found the student had demonstrated a probability of success in showing an entitlement to an award of compensatory education and that the college was an appropriate placement.
Implications:
This case should not be misread as holding that compensatory education can include the payment of college tuition. It actually is quite consistent with numerous other cases involving similar facts.
The school district dropped the ball completely. For at least a year and one-half, it failed to provide FAPE or find the residential placement it agreed was appropriate and admitted it would be unable to do so in the future. The only placement suggested to the court was the college, proposed by the parent and student. On these facts, it is hardly surprising that the student won.
The court stressed that the tuition was not for college degree courses but rather for courses that would enable the student to obtain his high school diploma. When a district fails to provide FAPE, a placement proposed or utilized by a parent does not need to satisfy all of the requirements of IDEA, so long as it is in fact "appropriate" in that it allows the student to make educational progress. It can be a placement that the district itself could not lawfully make.
The real lesson of this case is that a district must make a good-faith effort to provide FAPE, which may sometimes require creativity. When a district fails to do so, a hearing officer or court may end up approving whatever alternative the parent proposes unless it is completely unreasonable.
LaPointe & Associates, P.C.
Special Services
The FAQ's Ounce of Prevention News
Q Are psychological evaluations and test protocols "education records" under the Family Educational Rights and Privacy Act (FERPA)?
A FERPA is a federal law which affords parents and eligible students certain rights with respect to a student's education records. FERPA broadly defines the term "education records" to include those records, files, documents or other materials, which (1) contain information directly related to the student; and (2) are maintained by the school or an agent of the school. Therefore, a special education evaluation or assessment would be considered an education record under FERPA if it contains information directly related to the student (i.e., student name, student i.d. number) and is maintained by the school district (or an agent of the district). If test protocols or test question booklets do not contain information directly related to the student, these documents are not education records for purposes of FERPA. In addition to providing a parent access to education records, however, FERPA also requires school districts to respond to reasonable requests for explanation or interpretations of education records. Thus, upon parent request, a school district could be required to provide explanation and interpretations of standardized test scores by reviewing tests with the parent. See, Fonda-Fultonville (NY) Cent. Sch., 31 IDELR 149 (FCPO, 1998).
COMPENSATORY EDUCATION IS NOT ALWAYS AN
APPROPRIATE REMEDY, TENTH CIRCUIT RULES
The Tenth Circuit has ruled that a change in OT services, despite parental objection, did not violate stay-put or entitle the student to compensatory education, in Erickson v. Alburquerque Pub. Schs., 31 IDELR 156 (10th Cir., 1999).
The student was in seventh grade and diagnosed with bipolar disorder and learning disabilities. He had received OT since he was in pre-school. His IEP for the prior year had provided for two hours of OT per week, without specifying the type of occupational therapy to be provided. One of the hours actually provided was hippotherapy, a therapy involving horses.
An IEP in June, 1995, continued the two hours of OT per week for the 1995-1996 school year, without specifying the type of OT to be provided. In September, 1995, a new IEP meeting reduced OT to one hour per week and discontinued hippotherapy. The parent agreed to the reduction in OT but objected to elimination of hippotherapy. The district immediately terminated the hippotherapy.
The parent requested a due process hearing contending that discontinuing hippotherapy violated stay-put and denied the student FAPE. The hearing officer found that the district had provided FAPE, but had violated stay-put and failed to make an individualized decision regarding the student's needs by predetermining that OT would be provided at school rather than an outside facility and awarded one semester of hippotherapy as compensatory education.
The review officer found the September, 1995, IEP provided the student FAPE and that the district had not violated stay-put and the district's predetermination to provide OT at school did not violate IDEA because it was a permissible change in the location of services rather than a change in services. The review officer set aside the award of compensatory education.
The federal district court granted summary judgment to the school district, finding that stay-put did not apply because elimination of hippotherapy was merely a change in methodology of services and not a change in educational placement. The court concluded that the student was not entitled to compensatory education because he was not denied FAPE.
On appeal, the parent contended that stay-put required the district to continue to provide two hours of OT per week, including one hour of hippotherapy, until her appeal was resolved. The court noted that stay-put does not apply when the parent and school district agree to changes in services and the parent had agreed to a reduction to one hour per week.
With respect to hippotherapy, the Tenth Circuit observed that the purpose of stay-put is to prevent unilateral change in the "current educational placement" and that some courts hold the dispositive factor is the IEP in place when stay-put is invoked. The student's IEP provided for OT but did not specify modalities or providers. Since OT was still provided, elimination of hippotherapy did not contravene the IEP. The Tenth Circuit further observed that some other courts have looked to whether there is a fundamental change in or elimination of a basic element of the student's educational program. In this case, the OT was intended to address the same therapy issues as hippotherapy without changing a basic element of the student's program. Thus, under either approach, stay-put was not violated.
The parent also contended that the district had predetermined to decrease the amount of OT and eliminate hippotherapy and the student was entitled to compensatory education for this procedural violation of IDEA. The Tenth Circuit held that, when the IEP is found to provide FAPE, compensatory education is not an appropriate remedy for a procedural violation. The Court noted that a parent may be entitled to some relief for a procedural violation but found that does not include compensatory education when the student is already being appropriately educated.
Implications:
This decision makes clear that stay-put does not automatically freeze in place everything the district was actually providing under the previous IEP. The district must continue to provide the program and services in the IEP (the "what") but is not bound to continue the same method of delivery (the "how"). Thus, in this case, so long as the district continued to provide OT, addressing the IEP's goals and objectives, it did not violate stay-put by changing the modality from hippotherapy.
Probably more significant is the Court's rejection of the contention that compensatory education is appropriate relief for any violation of IDEA. The purpose of the procedural requirements is to help ensure that a student receives FAPE but the ultimate objective is to provide the student with FAPE. While procedural violations are not to be ignored, when a student actually receives the FAPE to which he or she is entitled, there is no loss of education to be compensated. The Tenth Circuit has squarely held that compensatory education is not an appropriate remedy when FAPE has been provided.
Private, including parochial, schools that receive federal financial assistance are subject to § 504, a federal district court in Louisiana recently ruled in Dupre v. Roman Catholic Church of the Diocese of Houma-Thibodaux, 31 IDELR 129 (ED La, 1999). The school argued that it was not a "recipient" of federal funds because it did not receive them directly but rather as "flow-through" funds through the local public school district. The court rejected this argument, relying on the plain language of the federal regulations which define "recipient" as including "any public or private agency, institution, or organization . . . to whom federal financial assistance is extended, directly or through another recipient." Thus, the fact that aid was indirect was irrelevant.
When the public school district makes FAPE available, except for its child find responsibilities, it has no obligation under § 504 to provide services to parentally placed private school students. Letter to Vier, 20 IDELR 864 (OCR, 1993). The private school itself, however, if it receives any federal funds, has obligations under § 504 as a recipient. Those obligations extend to all operations of the school, even though a particular activity may not receive federal funds. The recipient private school's obligation is limited, however. Unless it operates special education programs, it is required to provide an appropriate education to a qualified handicapped person only if it can do so "with minor adjustments" to its program. 34 CFR 104.39.
The U.S. Department of Education's Office of Civil Rights (OCR) only enforces § 504 when the federal funds are received from the Department of Education (such as Title I, Title II and Drug Free Schools). However, other federal agencies have issued essentially identical § 504 regulations and enforce § 504 with respect to their programs. Thus, if the only federal funds a school receives are for school lunch, the school is still subject to § 504 but the U.S. Department of Agriculture would be responsible for enforcement.