December 1993, Vol. 7, No. 4 ~~~~Return to INDEX
An "Ounce of Prevention..." News
HEARING OFFICER FINDS INCLUSIVE
SETTING INAPPROPRIATE
A Massachusetts hearing officer ordered placement of a student with
behavioral characteristics of autism and/or a pervasive developmental
disorder in a self-contained program located in a separate facility. Sudbury
Pub Sch, 20 IDELR 948.
Parents of the seven year old student wanted continued placement in the
regular education first grade classroom. The student's IEP called for
placement in a regular education kindergarten for both the morning and
afternoon sessions, with instructional modifications, a behavior
management plan, and an individual full time aide. Special education
services were provided during a mid-day break which focused on language
and academic skills. School personnel observed, however, that the student
exhibited frequent disruptive and dangerous behaviors to himself and
others in a large group setting, including kicking, biting, and throwing
objects. While acknowledging that the student's language skills had
improved in his current placement, the district attributed the improvement
to the one-to-one special education service. The district maintained that
the student learned best in a one-to-one setting, or in a small group of
developmentally similar children. The district's recommendation was that
the student be placed in a small group, highly structured setting with a
behavioral focus. The recommended placement required that the child be
transported to another district where the nearest self-contained program
was operating. There were no self contained programs for elementary grades
in the student's resident district.
At a due process hearing, the hearing officer considered several
placement options: the current general education placement in the
student's resident district, an out of district private school placement
offering intensive, therapeutic services and an out of district special
education collaborative program in a public school which offered
opportunities for mainstream classes and "reverse mainstreaming"
where regular students joined the program for specific activities. The
hearing officer ordered that, given the student's unique educational
needs, the least restrictive, most appropriate environment was the out of
district, special education program. In doing so, the hearing officer
admonished the resident school district, citing its failure to offer
students within its district "a continuum of alternative placements
tailored to address special education needs in the least restrictive
setting."
IMPLICATIONS:
With the movement in education towards full time inclusion, this case
seems like an anomaly. It provides a good opportunity to again see the "tension"
created when trying to implement IDEA's requirements of LRE and meeting
students' needs in an inclusive setting. LRE requires options--from
self-contained to inclusive programs--a continuum of programs from which
the IEPC selects the least restrictive which still meets the student's
individual needs. LRE also requires that children with disabilities are
educated with nonhandicapped children to the maximum extent that is
appropriate, considering that the student's needs are met. Here, despite
the presence of a full time aide, extensive curricular modifications, and
a behavioral management plan, the student's autistic behavior escalated in
the larger group setting.
Is this case "precedent" for anything? No. Just like the much publicized inclusion decisions in Oberti and Holland, this case stands for nothing more than what program was deemed appropriate to meet the individual needs of this child. But, it should not go unnoticed that the hearing officer here paid great attention to the efforts and variety of techniques used by the district before it proposed a more restrictive placement. You will recall in Oberti, the district alleged it had tried educating the student in a general education setting but without success. The courts there found the "effort" in terms of support to the student and teacher almost lacking. See OP News, Aug. 1993, Vol. 6, #12 at p. 4.
TEACHER ORDERED TO PAY DAMAGES FOR FAILING TO
COMPLY WITH IEP
A West Virginia jury ordered a high school teacher to pay $15,000 in
compensatory and punitive damages plus litigation costs to a student with
learning disabilities because the teacher refused to comply with the
accommodation of oral testing, as required by the student's IEP. Doe
v Withers, 20 IDELR 422.
A ninth grade student was diagnosed as having a learning disability in fourth grade and began receiving special education services. The student's IEP provided for oral testing for all subjects by a learning disabilities teacher in a resource room. When the student reached high school, all teachers except the student's history teacher complied with the oral testing accommodation. Despite repeated requests from the parents and a written directive from the special education coordinator to permit the oral testing, the teacher continued to administer written exams. The student failed the first semester of the history class, but passed the rest of his classes. As a result of his failing grade, the student was not allowed to participate in extracurricular activities. The teacher refused to meet with the student's parents to discuss his noncompliance. He also insulted and belittled the student in front of the rest of the history class.
During the second semester of the school year, the history teacher took
a leave of absence to serve in the state legislature (proving once again
that truth is stranger than fiction!). The substitute teacher complied
with the oral testing modification and the student's grades "dramatically
improved" in the class.
The parents took the issue of the first semester grade to a hearing.
The hearing officer ordered the principal, superintendent, and the school
board to administer an oral re-test covering the first semester history
material. School officials were also ordered to provide any tutoring or
reteaching of material to prepare the student for the test.
The parents then filed suit under 42 USC 1983, claiming that their son
was deprived of his statutorily granted civil right to a free,
appropriate, public education under IDEA and state law. The teacher,
principal, superintendent, and the board of education were named as
defendants. The judge subsequently relieved the school officials of
liability, except for the teacher. The jury awarded the student and his
parents $5,000 in compensatory damages, $10,000 in punitive damages and
also the costs of litigation.
IMPLICATIONS:
This case provides a good answer to the question,"Who has
a legal duty to implement a student's IEP?" As the judge and the
hearing officer held in this case, all school personnel have this
responsibility. The IEP is a legal document, enforceable under state and
federal law. A district is well advised to provide inservices about the
responsibilities of districts under IDEA to implement an IEP. Here, while
the district apparently did understand that the services contained in the
document must be provided since it "directed" the teacher to do
so, it didn't follow through further.
Recalcitrant teachers who do not wish to accommodate students with
disabilities sometimes cite their "academic freedom" to instruct
and evaluate students as they choose. Teachers may believe that the
student with disabilities is given an "unfair advantage" because
of a modification. But teachers and administrators need to understand
that, regardless of their beliefs, the services, modifications and
accommodations required by an IEP (unless appealed) must be implemented.
This is the only case we know of where a teacher has been held liable
for not implementing an IEP. Given these facts, however, it is amazing
that the teacher's job status was not attacked by the district! Possibly
the fact that the teacher was also a legislator was the reason no action
was taken but significant is the party actually at fault was the only one
held responsible for damages. But what an expensive and time consuming
lesson for all!
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NEW YORK COURT EXCLUDES
NURSING CARE AT SCHOOL
A New York court held that special nursing care for a medically fragile
student was an excludable medical service under IDEA and state special
education law.
The parents of a student who was paralyzed from the neck down and
required a ventilator to breathe requested a specially trained nurse to
assist the student at school.
The court determined that a specialized nurse for the sole benefit of this student was not a related service but was more akin to "medical" services. Ellison v Board of Educ of Three Village Cent Sch Dist, 19 IDELR 1027.
IMPLICATIONS:
With regard to the extent of school health services a district is
required to provide under IDEA, courts have generally applied the "rule
of reasonableness." Services beyond the range of a school nurse's
competence or intensive or continuous services are not required. However,
intermittent services provided on a reasonable available basis (e.g.,
tracheostomy suctioning, tube feeding, etc.) are required. Here, the
nursing care was continuous and solely for the benefit of one child.
Some key, fundamental steps must be taken when determining whether
school health services are needed and if so what type, constant or
intermittent (including who must provide them, e.g., nurse or trained
aide):
1. Get complete medical information, including the nature of the health problem, interventions required, and training necessary to provide interventions. Remember that the information on the student must be obtained from a physician, not the parent. This is a medical not an educational decision.
2. Obtain medical authorization and arrange for the supervision
required by the public health code.
3. Provide staff rendering the school health services with information
and the authorization as well as the appropriate training required to
provide the intervention.
Under Michigan's Tort Reform Act, district employees providing school
health services within the scope of their employment are generally immune
from liability unless "grossly negligent" (i.e., conduct so
reckless that it demonstrates a substantial lack of concern for whether
injury results). If the above steps are not taken, such as no or
inappropriate training, this could be sufficient to constitute "gross
negligence." On the other hand, if these steps are taken, any
potential liability is very remote.
ATTORNEY FEES AWARDED AFTER SETTLEMENT
AT PRE-HEARING CONFERENCE
A federal court in Indiana awarded attorney fees under IDEA where
parents received the relief requested at a pre-hearing conference with a
hearing officer. Dutko v Warrick County Sch Corp, 20 IDELR
807.
The parents requested an administrative hearing to challenge the educational placement of their son. The school district offered the services that the parents wanted at a pre-hearing conference and the parents accepted. The court held that the parents as the prevailing parties were entitled to attorney fees for work performed prior to the holding of an administrative hearing.
IMPLICATIONS:
When and how to conclude an IEP can have critical implications regarding an award of attorney's fees. Once an IEP ends, attorney's fees can be awarded if the parent is the "prevailing party" well before a hearing occurs, as in the above situation. The district has control regarding the conclusion of an IEPC as long as it acts reasonably. Because the district may want to know all issues and disputes and the parent's position(s) concerning each, it might choose to adjourn the IEPC to give parents more time to identify the issues or what they want. With obviously litigious parents who are just unsure as to whether they agree to a particular IEP (or where the district might like to explore other options before heading to a hearing), the IEPC might be adjourned even over the vigorous objection of the parent provided the reason is legitimate and the delay is not unreasonable. Offering the parent additional time and thereby opportunities for resolving a dispute before the IEPC ends may avoid or mitigate the district's liability for attorney's fees. On the other hand, changes in position after the request for a due process hearing is made often provide a basis for reimbursement of the parent's attorney's fees (where moves made prior to the end of the IEPC typically will not). Candor in this regard with the parents might even motivate settlement if they understand their chances of obtaining attorney's fees will be diminished, should they choose not to cooperate by "running" to a hearing.Return to the TOP
OCR INVESTIGATION NEGATES PARENT'S CLAIM OF RETALIATION
OCR investigated a complaint that a school district retaliated against
a parent who had filed a FAPE claim against the district with the state
board of education. The parent alleged that the district reported
suspected child abuse of his daughter to state authorities and also
suspended the child from school as a result of his claim. OCR determined
that the district had a legitimate basis for reporting the suspected abuse
because the child told a school employee that her father hit her with a
belt, causing bruises. OCR cited state law which requires teachers to make
such reports. OCR also found that the child's suspension from school was a
result of her behavior and was not retaliatory. Mill Creek Valley (KS)
Unified Sch Dist, 20 IDELR 821.
IMPLICATIONS:
Don't let a litigious parent scare you off from reporting abuse when
you have a legitimate belief that it is occurring, even if a possible
claim of retaliation may result. In Michigan, school personnel, e.g.,
school nurse, social worker, administrator, counselor or teacher are under
a statutory duty (MCL 722.623) to report child abuse or neglect if there
is "reasonable cause to suspect" such harm. State law gives
immunity from civil liability to school personnel acting in good faith
when making a report or cooperating in an investigation. Failure to
report, however, can create civil liability and possible criminal
penalties if school personnel knowingly fail to act (MCL 722.633).
(See OCR INVESTIGATION, p. 6)
OCR INVESTIGATION (cont'd from p. 5)
With respect to school suspensions, it is important to remember the "rules"
regarding suspension/expulsion of students with disabilities (e.g.,
suspension in excess of 10 days is considered a change in placement that
cannot be instituted without the procedural requirements of IDEA),
particularly those students who are identified as "emotionally
impaired." This case also provides a good lesson regarding school
policies and record-keeping. This district had a discipline policy which
included progressive discipline. It also documented the incidents and how
they were handled. OCR reviewed the policy and records to compare
treatment of the complainant's daughter with another student in the
general population who exhibited similar behavior and found that both
students received the same punishment. This district followed standard
discipline procedure and had the appropriate documentation to prove it.
In addition to having a discipline policy that recognizes the different
"rules" for disciplining students with disabilities (e.g., the
State Board's Position Statement on Suspension/Expulsion of Handicapped
Students), districts must also avoid another trap. Just because two
students (one of whom is disabled) have similar behaviors, a district
should not automatically discipline the disabled student as they would a
student without disabilities. Consideration should be given to whether the
student with disabilities has a behavior management plan, if so, what it
provides, and if not, given the student's behavioral history, should one
be developed? Too often behavioral problems and attendant suspensions
escalate to a crisis level before an appropriate behavior management plan
(and training to implement it) are put in place.
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