March 1997, Vol. 10, No. 7 Return to the Article INDEX
An "Ounce of Prevention..." News
Information and Ideas from IPPSE for Practical Problem Solving in Special Education
DISTRICT MUST IMPLEMENT ORALLY
AGREED UPON IEP
A district's failure to implement an orally agreed upon IEP for a student resulted in
reimbursement for a home-based discrete trial training (DTT) program in Lincoln
Consolidated Sch, 2 ECLPR 275 (SEA Mich, 1996).
At a December 1995 IEPC meeting, the parents of a five-year old child with autism requested the school district to develop an IEP structured around goals and objectives with a DTT approach. Prior to this time, the child had been enrolled in the district's PPI program and participated in private one to one DTT in the home setting. The district initially declined the parent's request. However, after further evaluations, the district proposed an IEP in March 1996 which provided for 35 hours of educational instruction, including, thirty hours of discrete trial training instruction; two paraprofessionals and one substitute paraprofessional trained in DTT; weekly team meetings to which parents would be invited to participate; extended school year programming; and, a transition program from the student's current home based DTT program to the school based program. The proposed IEP was accepted by the parents. According to the hearing officer Henry Gottwald, there was no indication that the IEP was incomplete or that the IEPC would be reconvened at a later date. The parties, however, did not reduce the agreement to writing because the issue of reimbursement remained to be resolved.
Subsequently, district staff held several meetings to discuss the child's IEP without
informing the parents or inviting them to participate in the meetings. In May 1996, the
district presented the parents with a "radically different" written IEP than was
proposed and accepted in March. The parents disagreed with the IEP and requested an
impartial due process hearing.
Upon review of the evidence submitted by the parties, the hearing officer found that
the district had committed several procedural violations when it held meetings regarding
the child's IEP without inviting the parents to participate. The hearing officer further
concluded that the parties had reached an oral agreement on the child's IEP in March of
1996 under the theory of promissory estoppel. Although the March IEP was not signed due to
the reimbursement issue, the hearing officer held that there was "agreement on the
program." Moreover, the hearing officer stated that an appropriate educational
program for a child "should not be compromised by linkage to issues of reimbursement
for past expenditures." Therefore, the district was obligated to abide by that
agreement and the district's failure to implement its terms, denied the child a FAPE.
Accordingly, the hearing officer ordered the district to implement the March IEP and
reimburse the parents for the cost of the student's home-based DTT program from the date
of the March IEP.
IMPLICATIONS:
Regrettably, Lovaas-style interventions, such as the subject of this hearing, to often
tend to bring out the worst in both parents and district staff as they attempt to follow
IDEA's evaluation and IEP processes. Here, it was found that the district acted
improperly. One can only speculate with regard to why it did what it did. But, whatever
the reasons or motivation, the district by its actions undercut not only the spirit but
the letter of IDEA's requirements regarding the IEP process.
The lessons of this decision are quite simple. First, despite the controversial nature
of the program or service being discussed and the likely strong
feelings on both sides as to its appropriateness, such does not excuse a district (nor
a parent for that matter) from IDEA's requirements regarding the evaluation and IEP
development processes.
The second lesson of this situation is that where a district and parents can agree upon a student's programs and services, either at an IEPC or thereafter but not certain non-programmatic issues, e.g., reimbursement, from a technical legal standpoint, either a district or parent could refuse to implement the agreed upon programs and services until the non-programmatic issue is resolved. But such only penalizes the child an agreed upon appropriate program in the interim. The sounder approach, we believe, is to document in the IEP the agreed program and implement it in the best interests of the child. Other non-programmatic issues, such as here parental claims for reimbursement, should also be documented but with the IEPC being reconvened at a later date in an attempt to resolve the non-programmatic issue. Then if agreement is not reached, the parent can proceed to a hearing and the program can continue to be implemented. See Appendix C to the IDEA regulations at Question 35--the answer thereto recognizing this approach as an option if agreed upon by the parties. The approach can also be used when there is only partial agreement on a program if the agreed part can feasibly be implemented.
"CYA" CHECKLIST RE:
POLICIES/PROCEDURES
We are not naive to the fact that many readers of this article are, despite their best
efforts, engaged in what could be fairly characterized as "crisis management."
But, if you or a member of your staff can ever find the time to check on whether your
district has in place those policies and procedures relating to students with disabilities
required by various laws or which although not required, certainly would be wise to have
in place, here's a checklist to help you cover your "rear flank." With regard to
some of these documents, the District may have a policy or procedure, but it is very
outdated. With others it may have been developed and is being followed, but never was
formally adopted by the Board. And then worst of all, a policy required by statute may
never have even been formulated by the district at all.
(Please see the hard copy.The table format did not translate into HTML very well.)
EIGHTH CIRCUIT ADDRESSES THE ISSUE
OF DAMAGES
The United States Court of Appeals for the Eighth Circuit recently decided two cases
addressing the availability of damages under the IDEA, Section 504 of the Rehabilitation
Act and the ADA.
In Hoekstra v Independent Sch Dist No 283, 25 IDELR 136 (8th Cir, 1996),
the parents of a 14-year old student with physical disabilities sought money damages as a
remedy for the district's delay in providing their child compensatory education in
violation of the IDEA. The parents also claimed that the district violated the ADA when it
denied the student independent access to a lift elevator at school.
In rejecting the parent's request for general and punitive damages for the delay in
providing compensatory tutoring, the Eighth Circuit held that such remedies were not
available under the IDEA in light of its decision in Heidemann v Rother, 84
F3d 1021 (8th Cir, 1996) (where it held that general and punitive damages were not
available under IDEA for injuries such as pain and suffering, emotional anxiety, distress
and loss of skills--only reimbursement of expenses per Burlington were allowed).
Since the school district had provided the student with all but 8.5 hours of her
compensatory tutoring and had offered to provide the student the remainder of the tutoring
(an offer which the parents rejected), the court concluded that the parents had refused
the only remedy allowed under the IDEA. Accordingly, the court affirmed the district
court's dismissal of the parents' claim.
Similarly, the parents' ADA claim also was dismissed. The parents challenged the
district's initial refusal to provide Hoekstra with a personal key to access the elevator
lift at school. The district claimed that it was in the process of establishing criteria
for safe and independent operation of the lift, thus warranting the delay in providing
Hoekstra her own key. The lower court dismissed the parents' claim because they failed to
demonstrate that the school district acted in bad faith or exercised gross misjudgment in
initially denying Hoekstra independent access to the elevator lift. The court based its
decision on prior cases decided under Section 504 of the Rehabilitation Act, which is the
predecessor to the ADA. The parents argued that the ADA grants greater protection for
disabled individuals than is available under Section 504 and, therefore, the ADA must be
interpreted more broadly. The Eighth Circuit disagreed and held that in the case of
educational services for disabled children, a showing of gross misjudgment or bad faith on
the part of school officials is necessary to succeed on a Section 504 claim, and
accordingly, an ADA claim. Since the parents failed to make such a showing, their ADA
claim was dismissed.
Similarly, in Todd v Elkins Sch Dist, 1025 IDELR 152 (8th Cir, 1996), the Eighth Circuit rejected a parents' claim for money damages under the IDEA for injuries suffered by their son, a fourth grade special education student with muscular dystrophy who fell from his unbuckled wheelchair and broke his leg while being pushed on the playground by a fellow classmate. The parents requested compensatory damages of $500,000 for the injury, medical expenses, pain and suffer, permanent disability, damages to the child's self-esteem and confidence, diminished mobility and health, loss of earning capacity, and likelihood of a shorten longevity. The parent also sought punitive damages of $1 million. The court dismissed the parents' IDEA claim since the parents sought general and punitive damages rather than reimbursement for expenses. See Heidemann, supra.
However, the court did find that the parents had set forth a valid claim under
Section 504 since the parents' complaint alleged that their child was "excluded
from the benefits of the [school district's] programs solely because of his
disability." Moreover, the parents alleged that the school district discriminated
against their child by "intentionally" maintaining unsafe conditions and acting
with "thoughtless indifference and an intentional disregard" for the child's
safety. The Eighth Circuit found that these allegations were sufficient to state a claim
under the Rehabilitation Act. Moreover, the court found that the parents also stated a
sufficient Section 1983 claim when it alleged that the district had established a
"custom, policy and consistent practice" of denying the child his rights under
the Rehabilitation Act.
IMPLICATIONS:
The reason that the Hoekstra case is of interest to us in Michigan is that its
holding to the effect that parents cannot obtain either general or punitive damages for
violations of IDEA is consistent and supportive of our Sixth Circuit Court of Appeals
position on this issue. In fact, it joins a growing line of decisions finding that damages
under IDEA are not available, contrary to the Third Circuit Court of Appeals decision in Matula,
which at the time it was rendered received a great deal of publicity and understandably
raised concerns among districts and their staff.
With regard to the other major holding in Hoekstra, namely that in the case of
educational services for a student with disabilities, a parent must show gross misjudgment
or bad faith on the part of the district as part of its alleged 504 and/or ADA claims, the
Sixth Circuit has not as yet ruled on this specific issue. It has ruled that punitive
damages
are not available under Section 504 (and presumably the ADA). And, it has also
ruled in a variety of situations that general compensatory damages are available for
violations of Section 504.
With regard to whether a parent must show gross misjudgment or bad faith as part of its
alleged Section 504 claim, the federal district courts which have ruled upon the issue in
Michigan are split. Several, mostly older, cases have held, most indirectly or by
implication, that gross misjudgment/bad faith need not be shown. But, at least one more
recent federal court decision (Leon, et al. v St Bd of Ed and Bd of Ed of
Farmington, 19 IDELR 397 (US DC, Mich 1992), ruled that bad faith/gross misjudgment
had to be present before a violation of Section 504 could be found and two recent
federal district court decisions out of the Minnesota have ruled the same.
Hopefully, the Sixth Circuit in the not too distant future will address and clarify
this issue.
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IPPSE:
Institute for Problem Prevention
in Special Education
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Okemos, MI 48864-3987
