June 1993, Vol. 6, No. 10
An "Ounce of Prevention..." News
DISTRICT COURT UPHOLDS DECERTIFICATION RULING
After a lengthy, and at times stormy administrative and
judicial review, Federal District Court Judge John Feikens on June 8,
1993, upheld the rulings of both local and state hearing officers that
Jeffrey Leon was no longer eligible to receive special education. Leon,
et al v State Board of Education, et al, Case No. 92-CV-75006-DT.
The case initially arose out of the Farmington School District when it was determined under both IDEA and Section 504 that Jeffrey was no longer eligible for services. His parents asked for hearings under both acts. When the parties could not agree upon a local hearing officer under IDEA, Jim Flaggert was appointed under the Department's procedures and the district thereafter appointed him under its 504 procedures to hear that aspect of the case as well. The parents then asked Flaggert to disqualify himself but he refused. After a hearing, Flaggert ruled that Jeffrey was not eligible for services under either act and the parents appealed. Frank Wawrzaszek was appointed the state level hearing officer and he affirmed the determinations of ineligibility as well as Flaggert's decision not to disqualify himself.
Next, the parents filed an action in Federal District Court claiming, among other things, that the state's procedures to appoint a local hearing officer when the parties could not mutually agree upon a person failed to provide them with an impartial hearing officer as required under IDEA. They also attacked the state's procedures for appointing a state level hearing officer, that Flaggert was automatically biased because he predominantly represented school districts, and that the district's Section 504 procedures were invalid because they permitted the district to unilaterally appoint a hearing officer. Both the district and the State Board contended the procedures were valid and that Flaggert was not biased. On December 3, 1992, Judge Feikens denied each of the parents' contentions. (For more details regarding this ruling see "MASEHO News," January 1993, Vol. 6, No. 2, at pages 1-3.)
Upon receipt of the above ruling the parents filed a motion for
reconsideration seeking a review of Flaggert's decision on the merits,
i.e. the determination concerning whether Jeffrey should have been
decertified. In granting the motion for reconsideration Judge Feikens
noted he was doing so only because the parents did not quarrel any further
with his prior holding that as a matter of law no procedural
irregularities occurred in violation of either IDEA or Section 504 in
determining Jeffrey was no longer eligible. Despite this ruling, the
parents continued to make procedural arguments. The Court ruled on them,
while technically it may not have had to, finding the errors alleged by
the parents were either non-meritorious or so insignificant as to not
warrant reversal. In doing so certain aspects of Judge Feikens' decision
warrant comment.
With respect to plaintiffs' right to bring a
claim for review under Section 504, the Court found parents had such a
right and had exhausted their administrative remedies with regard to those
claims under Section 504 which could be brought as well under IDEA. But,
it found that because Plaintiffs had no claim under IDEA, their Section
504 claim failed as well.
In applying the Rowley test as to whether IDEA procedures had
been complied with in development of Jeffrey's IEP, the Court initially
noted that due weight had to be given to the administrative proceedings
below and that the findings of fact by a hearing officer under IDEA were
entitled to be considered prima facie (i.e. presumptively) correct. The
Court then engaged in an extended and detailed analysis of various alleged
procedural deficiencies raised by the parents regarding how the MET and
IEPC were conducted. In affirming the finding of Wawrzaszek that the
procedures were not "substantial or material enough to adversely
affect the outcomes of this matter" the Court stated:
(a)
MDE's Interpretation I-059 was correct to the effect that the report
of a physician is all that is required under the POHI rule (R340.1709),
not the physician's actual presence.
(b) Just because a child
has a medical condition does not mean that the MET must determine the
student is eligible for special education since "handicapped children"
are defined as children who, because of impairments, need special
education.
(c) There is no requirement that districts conduct
medical testing, whether a child has ADD or not.
(d) The
initial IEPC was held prior to the end of the school year, a general
education teacher was present, and the district knew it would be
reconvened at a point in time after the school year ended so it asked the
parents if they had any questions of the general education teacher but
they had none. When the IEPC reconvened a principal was present
(representing the general education teacher) as well as a resource room
teacher who saw Jeffrey every day. Since the parents were unable to attend
a reconvened meeting before the end of the school year and previously had
no questions of the general education teacher, the parents' claim that the
district's failure to have a general education teacher at subsequent
sessions of the IEPC was frivolous.
(e) The parent ended the
second session of the IEPC because a general education teacher was not
present and stated "sitting here over the next three or four days and
asking 250 questions and going into detail on each and every one of them"
is pointless given the IEPC is illegal. State level hearing officer
Wawrzaszek's comment in response that an IEPC is not the appropriate forum
to ask 250 questions since questions about program and procedures can be
asked any time during the year, was approved by the Court.
(f)
Flaggert's instruction to the parent that they could not introduce any
information they had received from physicians or other professionals
involved with Jeffrey unless they released all the reports in their
entirety was correct. The parents could not attempt to introduce only
selected medical reports, or portions of reports, which were favorable to
them and refuse to turn over the unfavorable portions or reports.
In concluding, Judge Feikens agreed with both Flaggert and Wawrzaszek that
any procedural defects that may have existed were too minor, insignificant
or insubstantial to warrant reversal of the IEPC's decision to decertify
Jeffrey.
Implications:
First, it must be
remembered that the decision of this court is not binding upon other
courts or hearing officers, but need only be given deference. However, it
is another example of a trend of decisions emanating from the Sixth
Circuit Court of Appeals to the effect that if procedural flaws or process
errors are "technical" violations but do not disadvantage a
student regarding the student's receipt of appropriate special education
services, the student's rights under IDEA have not been denied. See "OP
News," January/February 1991, Vol.4, No. 3, and "MASEHO News,"
November 1992, Vol. 6, No. 1.
The decision in this case
also is a reflection that the legal requirements surrounding special
education processes (i.e. the MET and IEPC) are going to be given a
reasonable, common sense interpretation, e.g. the report of a physician
rather than the physician's actual presence is sufficient, and reasonable
access to a general education teacher during one portion of an IEPC may
also be sufficient to meet the legal requirement. Along this same line,
the Court obviously was not in favor of the IEPC turning into a lengthy
inquisition of teachers about a child's program and procedures. Both
parents and district staff participating in IEPCs should get a clear
message from this Court's ruling: IEPCs are to be meetings conducted on a
timeline, at a time and in a manner which are reasonable and make sense in
terms of fulfilling their purpose under IDEA. Any participant, be it a
parent or district staff person, who engages in conduct or who
unreasonably abuses the process will in all likelihood substantially hurt
their chance of prevailing should the matter be reviewed.
To
our knowledge, for the first time in Michigan, a court has affirmed the
well established but too often misunderstood principles that just because
a child has a medical condition does not mean the child will automatically
be eligible for special education (e.g. ADD for example) and that there is
no requirement that school districts automatically conduct medical
testing, unless such is necessary and appropriate in order to conduct a
comprehensive evaluation of the student's possible disabilities.
Finally, while it has come up on several occasions in local hearings in
this state, again we believe this is the first time that a court has
directly ruled that a parent cannot selectively disclose and introduce
those portions of medical and other professional records regarding a child
while withholding other records they deem unfavorable to their situation.
The same should, and would, clearly apply to school districts although
quite frankly, unlike a parent, a district has no privilege or other basis
to withhold any such records from a parent inasmuch as they would be a
part of the student's educational records.
"OP News"
will monitor this matter to see if an appeal is filed. Those desiring a
copy of this opinion will be provided one upon request.
Return
to the TOP
COURT AWARDS ATTORNEY'S FEES FOR
MEDIATED SETTLEMENT
Where a district and parents utilized a state's mediation procedures to
arrive at a settlement, the parents were entitled to recover attorney's
fees as a prevailing party under IDEA. Such was the holding of a U.S.
District Court in California in the matter of Masotti v Tustin
Unified Sch Dist Bd of Ed, 19 IDELR 480. The district had contended
that inasmuch as the hearing had not commenced, Congress had not intended
to permit the awarding of attorney's fees. The court rejected the
argument, noting the overwhelming majority of cases supporting the
granting of attorney's fees when a settlement favorable to the parents has
been achieved after a due process hearing had been requested, but before
the hearing actually commenced.
IMPLICATIONS:
Only one other decision to our knowledge, has ever specifically addressed the question of whether attorney's fees can be awarded to parents based upon a favorable settlement achieved as a result of mediation. Reed v Oakland Unified Sch Dist, EHLR 441:368. The result is the same and should not be surprising.
Once the parent has requested a due process hearing, if the parent
achieves a favorable settlement, the parent will be eligible to be
reimbursed for attorney's fees in whole or in part as a prevailing party
under IDEA. The process that prompted the settlement agreement, be it
mediation, a prehearing conference, informal discussions, or otherwise, is
really irrelevant.
Return to the TOP
POTPOURRI OF RULINGS ON LRE
Over the last few months, various rulings have been issued on subjects
relating to LRE which warrant mentioning.
First, the Office of Special Education Programs (OSEP) reaffirmed that
where an IEPC determines that a preschool child with disabilities must be
placed in a preschool program, a district is obligated to provide such at
no cost to the parent. Wessels, 19 IDELR 584. The district's
options in doing so include paying tuition for the student to attend a
private preschool program for nondisabled children located outside of or
within one of its schools, providing the opportunity for participation in
other preschool programs operated by the district or other agencies or in
a general education kindergarten class, if appropriate. Where a parent
wants the child to remain in a private preschool for longer than what is
required in the IEP, the parent would be responsible for any costs
associated with any portion of the program not necessary to implement the
child's IEP. The district would remain responsible for all tuition costs
associated with that portion of the placement required to implement the
child's IEP. This ruling is similar to that previously issued in Neveldine,
16 EHLR 739.
OSEP also responded to a question as to whether the use of regular education curriculum materials for special education students could ever be considered "specially designed instruction" under IDEA. Smith, 19 IDELR 494. Noting that the phrase "specially designed instruction" is nowhere defined either in IDEA or its regulations, and applying what it deemed to be the plain meaning of the words, OSEP concluded that the use of regular education curriculum materials for certain students with disabilities might be appropriate under IDEA if such is necessary to meet the IEP and placement requirements as determined by the IEPC.
Q & A FOR THE MONTH ~~~ Return to
the TOP
Question:
The
parents have an ongoing dispute with a district regarding appropriate
programs and services for their child. They raise the dispute at one or
more IEPC meetings with the determination(s) being to not resolve the
dispute in their favor. The parents obtain services privately, but fail to
ask for and pursue a due process hearing. Have they waived their right to
seek reimbursement for the programs and services they obtained for their
child as a result of allegedly inappropriate IEPC determination(s)?
Answer:
Yes, but some background is important.
You will recall the
U.S. Supreme Court in the Burlington case held that under IDEA
retroactive reimbursement to parents was an available remedy in a proper
case where it was determined that the IEP proposed by the district was
inappropriate and the private placement chosen by the parents was
appropriate. The Court held that parents do not waive their right to
reimbursement by violating the stay put provision when placing the child
in a private school setting during the pendency of the review proceeding
but do so at their own financial risk, depending upon the ultimate
determination as to the appropriateness of a district's IEPC, and if found
to be inappropriate, the appropriateness of the private placement they
chose as well as a consideration of various other equitable factors.
In both Burlington and the subsequent decision of the Supreme
Court in Rowley, great emphasis was placed on the importance of
the IEP process required under IDEA. Since those decisions, a substantial
body of law has developed in support of the proposition that parents
generally may not circumvent the IEP process and go straight to a hearing.
See, for example, Doe v Sumner County, 16 EHLR 134 (SEA,
1987); rev'd on facts, EHLR 559:391 (MD DC, Tenn 1988), rev'd
on other grounds, EHLR 441:544 (6th Cir, 1989); Doe v Defendant
I, 16 EHLR 930 at 932 (6th Cir, 1990); Cordrey v Euckert,
17 EHLR 104 at 106 (6th Cir, 1990); and Evans v Douglas County
Sch Dist No 17, EHLR 559:381 (8th Cir, 1988). But, where a district
has been dilatory in convening or completing an IEP meeting, courts have
excused the parents' failure to pursue the IEP process before demanding a
hearing to seek reimbursement. See, e.g., Hudson v Wilson,
EHLR 559:139 (4th Cir, 1987); and Rapid City Sch Dist 51/4 v Vahle,
17 EHLR 276 (8th Cir, 1990).
While our own Sixth Circuit has taken a fairly strong stand on both
parties properly utilizing the IEP process as a foundation for a potential
due process hearing, it does not appear the court has specifically
addressed the question posed. But, several other courts have, specifically
holding that where the parents have failed to pursue a due process hearing
under such circumstances, they waive their right to reimbursement up to
that point in time when an IEPC is held which they do appeal. See Louisville
Ind Sch Dist v Brooke, 16 EHLR 1313 (DC Tex, 1990); Garland
Sch Dist v Wilkes, EHLR 558:308 (DC Tex, 1987); and Ash,
et al. v Lake Oswego Sch Dist No 7J, 18 IDELR 3 (DC, Or,
1991), aff'd 19 IDELR 482 (9th Cir, 1992). The court in Ash
most recently, in dealing with this type of situation, emphasized the need
for parents to disagree with the district regarding the placement proposed
by an IEPC by requesting a hearing, noting such "disagreement
is an essential element in the right to reimbursement under the Act"
pursuant to the Burlington decision. In all likelihood, our Sixth
Circuit Court of Appeals would follow the holdings of these courts
regarding this question.
The parents would remain potentially eligible for reimbursement of expenses incurred for tuition or tutorial services for that period of time after they eventually filed a due process (See Q & A, p. 6)
Q & A (cont'd from p. 5)
hearing request subsequent to an IEPC, the amount of such reimbursement being dependent upon the eventual determination after the hearing of the appropriateness of the IEPC's proposed programs and services, the appropriateness of the parent's chosen placement, and the other equitable factors laid down in Burlington. And remember, these principles apply not only in situations involving private residential placements but also parental claims for private tutoring, therapies, etc.