January 1994, Vol. 7, No. 5

An

"Ounce of

Prevention..."

News

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The United States Court of Appeals for the Sixth Circuit awarded 100% of attorney fees to a parent who challenged the appropriateness of her child's IEP under the IDEA at a due process hearing. The Court held that the parent was the "prevailing party" despite the fact that she prevailed on one of four issues presented at the hearing. It further reasoned that the hearing initiated by the parent provided a catalyst for a "marked change in the legal relationship between the parties" and furthered the goal of IDEA which is to provide a "free appropriate public education" for disabled students. Phelan v Bell and Wayne-Westland Comm Schs, 20 IDELR ___.

The parent of a severely handicapped boy who engages in self-injurious behavior (SIB) requested at an IEP that the school district use the Self-Injurious Behavior Inhibiting System (SIBIS), an electronic device that straps to the head and generates a mild, brief, electrical shock in response to each instance of SIB. The school district proposed an IEP for the boy which would have continued a prior, ineffective program, claiming that the use of SIBIS violated the school's guidelines and Michigan's Corporal Punishment Act.

The hearing officer ordered a new IEPC and decided that the use of SIBIS did not violate either the Michigan Corporal Punishment Act or the school's stated guidelines. The officer did not order the immediate use of SIBIS, but stated that the device could be used only after all reasonable alternatives failed. The hearing officer also found that SIBIS was not a "related service" under the IDEA, relieving the districts of the responsibility

to provide the device at no cost to the parent. At a new IEPC, directed by the hearing officer, the parent and the school district agreed upon how to implement new approaches to reduce the boy's harmful behavior. The parent filed a motion with the district court for attorney's fees under IDEA. The district court awarded 25% of her attorney's fees because she prevailed on one of four issues. The parent took the appeal of the district court's award of attorney fees to the Appeals Court. In awarding 100% attorney fees to the parent, the Appeals court defined a "prevailing party" as one who must "succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Hensley v Eckerhart, 461 U.S. 424, 433 (1983). The Court also awarded costs of litigation to the parent. The due process hearings which were initiated by the parent resulted in a "marked change in the legal relationship between the parties." Although the hearing decision did not mandate the immediate use of SIBIS, a broader goal to obtain an appropriate IEP for the boy was achieved. According to the Court, the parent's success in obtaining a new IEP and a determination that SIBIS was a possible legal option was sufficient to a declare the parent a prevailing party.

IMPLICATIONS:

At least two clear lessons should be learned from the decision. First, the district went into a hearing defending an IEP which they, in effect, conceded at the outset was not appropriate. Only after the hearing commenced did the district contact experts resulting, in part, in the new programmatic approaches adopted by the hearing officer. With such a "difficult to serve" student, where prior approaches had been unsuccessful, for the most part, the district should have explored experts and alternatives before the IEP was convened, or at least before it was concluded, to avoid triggering attorney's fees being awarded due to the "marked change in the legal relationship" which was almost inevitable given the new programmatic proposals made by the district's own expert's testimony.

Second, while a court may look at the number of issues on which the parent prevailed and lost, the court is not controlled by a mathematical analysis (e.g. parent only prevails on one out of four issues). As here, the court can grant all the fees requested where the "overall relief obtained" is a new IEP achieved as a result of what it characterized as the "dynamic interactive administrative process."

This was an expensive lesson because the attorney's fees and costs awarded exceeded $100,000! ~~~~~ Return to the TOP

DISTRICT MAY BE RESPONSIBLE FOR TRAINING TO CORRECT "REVERSE SWALLOWING" DURING FEEDING

According to OSEP's answer to a letter of inquiry, a district may have to provide training to a child with disabilities to correct a pattern of aspirating during feeding if the child requires this assistance to benefit from a free appropriate public education. Letter to Johnson, 20 IDELR 175.

A five year old child with disabilities has a condition known as "reverse swallowing." The district would like to offer guidance to an IEP committee to distinguish between "medical services," which are not provided under IDEA (except for physician evaluations), and related educational services (e.g., "school health services"), which must be provided as part of the child's FAPE. A local advocacy organization maintains that a district must provide OT or PT services for activities such as swallowing, to assist a child with disabilities in learning daily living skills.

After pointing out that it appeared from the letter of inquiry that the IEP had determined the child needed assistance to modify his or her feeding pattern, OSEP said the IEP team had to determine whether such assistance was needed for the child to receive a FAPE. If so, then OSEP replied if the training does not have to be provided by a physician and the service is neither for diagnostic or evaluative purposes, then it could be a required "school health service." It noted in Irving Independent School District v Tatro, 104 S Ct 3371, the U.S. Supreme Court offered a three-prong test to distinguish between medical services and school health service: 1) the child must have a disability, as defined by IDEA; 2) the service must be necessary to assist a child with a disability to benefit from special education; and 3) the service must be able to be provided during school hours by a nurse or another qualified professional, not a physician. It also pointed out that while the enumerated related services under the regulations are not exhaustive, occupational and physical therapy clearly are related services and if deemed necessary by an IEPC to enable a child with a disability who experiences reverse swallowing to benefit from special education, they would have to be provided.

IMPLICATIONS:

While the mindset of the person who submitted this letter of inquiry to OSEP is uncertain, it appeared the person may be approaching the medical service versus educational service issue from the basis that education means the more traditional academic pursuits rather than such daily living skills as feeding. This ruling merely reaffirms not only the breadth of what constitutes "education" within special education, but also the seemingly endless array of services possibly includable under "related services." Whether a particular service a student requires is or is not a related service must be analyzed in terms of whether the assistance is needed for the child to receive a FAPE and then whether it must be provided by a licensed physician. Remember, "medical" services under IDEA are defined as diagnostic or evaluative services provided by a physician so unless the service is neither diagnostic or evaluative, under IDEA a physician cannot provide it.

The result in this case should not be surprising given the circumstances. But, how and where to draw the line for services which are based upon medical as opposed to educational needs is still very uncertain as for example with occupational or physical therapy. The key is really the relationship of the therapy to the student's goals and objectives. Is it "necessary to assist" the student to benefit from education, i.e., address the student's goals and objectives? See in this regard Howell v Waterford Pub Sch, 16 EHLR 594, Maurits v Bd of Ed, EHLR 555:364, and In Re: Mary, EHLR 506:340, copies of which are available upon request.

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DISTRICT NOT LIABLE FOR STUDENT ASSAULT ON ANOTHER STUDENT

The Court of Appeals for the Eighth Circuit held that a school district does not have a duty to protect a mentally impaired student from a sexual assault by a classmate. Brian B v Little Rock Sch Dist, 20 IDELR 873.

The parent of a mentally impaired student alleged that a school district violated her son's constitutional right to personal integrity and security when another mentally impaired student sexually assaulted and raped her son while he was taking a shower at the district's high school. Both students attended the district's high school as part of the district's Community-Based Instruction Program. School officials were aware of the attacker's previous sexually assaultive behavior, but no action was taken that was sufficient to protect the student.

The Court reasoned that the state's compulsory education law does not create a custodial environment that gives rise to a constitutional duty to protect students. An exception exists when the state takes a person into custody and holds him against his will, as in a juvenile detention facility or a prison.(DeShaney v Winnebago County Dept of Social Serv, 489 U.S. 189, 199-200). But, the Court noted that the state's compulsory education law does not create a custodial environment that is sufficient to impose a similar duty to protect students.

IMPLICATIONS:

While a decision such as this is to some extent comforting for districts concerned about potential liability for the unexpected, it should not lull them into complacency. Despite decisions of this type and the protection of immunity laws that provide immunity from liability (except in cases of gross negligence, i.e., conduct so reckless that it demonstrates a substantial lack of concern for whether injury results), districts should take all reasonable steps to assure the safety of staff and students including: checking out information that a student is overly aggressive or dangerous, developing an appropriate behavioral management plan (with training to implement the plan) and providing appropriate supervision depending on the student and the activity. A number of courts have held that districts, and their employees, do owe a constitutional duty to children to protect them from known risks of assaults.

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MENTAL HEALTH RISK TO STUDENT CREATES AN EXCEPTION TO REEVALUATION REQUIREMENT

A federal district court in Texas held that a student with disabilities may not be required to undergo a reevaluation performed by an ISD to be eligible for special education services where the ISD's evaluation process would pose a serious risk to the student's mental or physical health. Andress v Cleveland ISD, 20 IDELR 743.

(See MENTAL HEALTH, p. 5)

MENTAL HEALTH (cont'd from p. 4)

The parents of a student who was diagnosed as learning disabled, speech and language impaired and emotionally impaired claimed that the ISD's reevaluation process violated the FAPE requirement of IDEA. The student was previously enrolled in the ISD, but was admitted to a psychiatric hospital after a hazing incident involving his peers caused severe emotional shock and distress. As a result of the hospital's psychological evaluation, the student was diagnosed with Gerstmann Syndrome, which manifests itself in a panic reaction whenever the student is forced to have any type of interpersonal interaction. The student's condition was aggravated by the hazing incident. The hospital's psychiatrist determined that the student should not return to school and instead be provided with homebound instruction until the end of the school year. The ISD informed the parents that in order to continue special education services, a comprehensive evaluation must be performed in compliance with the statutory requirements. Although the parents provided five independent assessments, each was rejected by the ISD as failing to meet state criteria. The ISD expressed concern that accepting evaluations which do not satisfy federal requirements might result in loss of federal funding.

The court held that although the requirement of reevaluation is necessary to determine the most appropriate course of special education for the student, an exception exists where the evaluation creates a serious risk to the student's mental or physical health. Absent this risk of injury, the ISD has an absolute right to conduct its own evaluation. The court reasoned that the benefit of the special education services should be balanced against the possible harm resulting from the evaluation. Considering the risk of harm to the student, the reevaluation requirement as applied here was held to constitute a violation to student's constitutional right to privacy since to do it would require forced, traumatic interactions with district staff which would probably result in a relapse. The court noted the legislative intent of IDEA is to guarantee the right of the student to a free appropriate public education, not to create harm.

IMPLICATIONS:

This court repeatedly stated that the situation presented to it was most "unusual" and it certainly was! The court stressed that this was not the typical situation where a parent and district disagreed on whether a student was eligible for special education or the inappropriateness of a particular test or testor. In such situations, the court stated it was "clear" that the district had the "absolute right to its own evaluation."

The court's reasoning and conclusion under these atypical circumstances appears to be sound. But, this decision does open the door for parents to contend that additional testing done by an evaluator of the district's choice will somehow be harmful to the child. In this case, the harm was not only fairly clear, but the likelihood of it happening was also deemed high. In most situations, the "harm" parents probably would allege would be inconvenience, the potential of improper conclusions being drawn from testing done by persons they believe are not properly qualified, the invalid results due to the testing having been administered too often or that the student has "just been tested enough." These reasons do not constitute the type of "harm" which this court found is enough of a serious risk to negate the district's "absolute" right to conduct an evaluation. Practically speaking, this court's decision may prove helpful for districts and parents as well in clarifying that the risk or harm must not only be real and likely, but "serious."

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