April 1994, Vol. 7, No. 8
An "Ounce of Prevention..." News
Information and Ideas from IPPSE for Practical Problem Solving in Special Education
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DISTRICT CANNOT BARGAIN AWAY
RESPONSIBILITY TO PROVIDE FAPE
A federal court in New Jersey ruled that a settlement agreement between
a district and parents of a multiply handicapped student that included
district responsibility for the cost of residential treatment (but did not
include a provision for a one-to-one aide) was binding on the parties,
unless the parents could overcome the presumption that the aide was not
necessary for a free appropriate public education under IDEA. DR v
East Brunswick Bd of Ed, 20 IDELR 957.
A district and parents reached a settlement agreement in mediation that
included placement of the student in a residential facility at district
expense with the district being financially responsible for 90% of any
subsequent increase in placement costs for the subsequent year. A year
after the agreement was signed, the district received an estimate from the
facility for the next school year that included additional costs for a one
to one aide for the student. The staff at the residential school had
determined during the first year that the child needed an aide to benefit
from their program. The district refused to pay any portion of the costs
attributable to the aide. Because this was a new service, the district
claimed the following provision in the settlement agreement absolved them
from any further responsibility for such costs, "The Board will be
absolved of any other or further costs based upon this placement, related
services, or transportation in connection therewith."
The parents requested a due process hearing. The hearing officer
granted the district's motion to dismiss, ruling the agreement was valid
under IDEA, and the parents had to pay for the aide.
The parents went to court and first argued that because the agreement
was reached during mediation, it was not a binding resolution of the
dispute. The court quickly rejected this contention, noting that because
it was reached during mediation in no way diminished its effect as a
binding contract. The parents then contended because the services of a
one-to-one aide were not contemplated at the time the agreement was made,
there was no meeting of the mind or it was tantamount to a mutual mistake,
requiring that the agreement be voided. The court rejected this argument
on the basis that neither party ever considered or even discussed at the
time the agreement was entered into the question of an aide. Therefore,
the extraordinary remedy of voiding the agreement on either of these bases
could not be justified. Finally, the parents contended that the agreement
was no longer binding upon them given the board could not bargain away its
responsibility to providing a FAPE under IDEA. While the court noted that
the parties were arguing the matter was one of construction of the
agreement, it found another issue had to be addressed, namely, whether the
one-to-one aide was educationally necessary. If found to be necessary, the
court held a school board could not discharge its duty by entering into a
settlement agreement "to contract around or out of IDEA."
In so holding, the court strongly emphasized that it "is sensitive
to the possibility that a narrow reading of today's holding will tomorrow
eliminate settlement agreements of special education cases." It went
on to declare that courts should not allow parents of disabled students "to
ignore a settlement agreement with a view to constructing a new and better
bargain." In specifically rejecting the contention of the parents
that they had a right to always seek an appropriate education for their
child despite an agreement they might have entered into, the court said it
presumed that at the time the agreement was entered into, the programs and
services agreed upon met the student's educational needs and therefore was
in compliance with IDEA. Accordingly, parents are barred from trying to
change a settlement agreement merely because they later find the terms
unacceptable. But, parents would have the right to question whether a
program in the settlement agreement continued to meet the requirements of
IDEA "if there has been a change in circumstances, such that the
child's educational needs are no longer being met." Thus, to avoid
agreements in special education becoming a nullity while still trying to
enforce the statutory requirements of IDEA, the court held that the
agreement between these parties was binding unless the child's
circumstances had changed so that enforcing the terms of the agreement
would violate IDEA.
Inasmuch as the hearing officer had never allowed the parents to make
any showing that the child's circumstances had changed, the matter was
remanded back for a hearing to determine whether the parent had raised the
issue of a change in circumstances before the hearing officer and, if so,
hear testimony and decide whether the aide was educationally necessary.
Given the agreement was binding on the parties, in the interim the parents
were required to bear the entire cost of the aide.
IMPLICATIONS:
This is the first decision to our knowledge which addresses
this problem. Interestingly, the approach utilized is very similar to that
currently authorized under Michigan's rules, specifically Rule 25e
where it is provided a hearing officer may specify the period of time a
decision is in effect, not to exceed one calendar year. The decision may
further provide that within that year, upon a showing a "substantial
change in circumstances," either party may request a modification of
the decision. While OSEP has previously been critical of the approach
utilized in this rule, this case might well serve as a basis to support
the rule's approach. The situation in this case was, in some extent,
unusual in that the settlement agreement involved more than one year's
programming. Given the framework of annual reviews of a student's IEP and
the increasing likelihood that changes may occur the longer the period of
the settlement agreement (particularly where it stretches beyond the
year), districts would be well advised in structuring settlement
agreements to give consideration to specifically addressing in the
agreement how alleged changes in circumstances will be addressed
procedurally. In approaching this problem, districts should consider it
not only from the perspective of the parent alleging such a change, but
the possibility of it doing so. Consideration might also be given to
clearly stating the test or standard (i.e., just a change in circumstances
or one that is "substantial," "significant," etc.).
Finally, as in the decision, the parties in the agreement may well choose
to designate specifically whether a dispute concerning an alleged change
in circumstance will be arbitrated (and, if so, by whom under what
guideline), or submit it to a due process hearing (and, if so, before
whom). Where settlement agreements are reached after a request for hearing
has been made and a hearing officer selected/appointed, if the agreement
provided, the hearing officer could retain jurisdiction for this purpose.
Whether the approach utilized in this decision opens the door to parents (or districts) ignoring settlement agreements will in all likelihood depend largely upon how hearing officers react to such allegations in establishing what threshold allegation is necessary regarding changed circumstances to warrant a hearing being convened.
USE OF SPECIAL EDUCATION AIDE FOR ORAL TESTING
APPROPRIATE UNDER IDEA
A hearing officer in Vermont ruled that IDEA does not prevent special
education aides from being used to facilitate oral testing of a student
with disabilities. In re Child with Disabilities, 20 IDELR 314.
Parents requested a hearing to change an accommodation in their
student's IEP which permits the student to give oral answers to essay test
questions to the student's classroom teacher, special education teacher or
trained special education aide. The parents alleged that the use of the
trained aide violated IDEA and sought to limit the individuals used for
oral testing to the teachers. They argued that an aide could not provide
prompting and interpretations of classroom materials to assist the student
in successful completion of essay tests.
In denying the parents' request, the hearing officer ruled that the use
of a trained special education aide is appropriate to record answers given
orally by a student with disabilities. There was no basis to find the
student's needs required prompting or interpretations. The officer also
noted that an IEP is an individual program that is not rendered inadequate
by its failure to list each and every service and accommodation which
could possibly provide educational benefits to the student. Here, as a
practical matter, a trained aide was perfectly competent to do this
function.
IMPLICATIONS:
The lesson to be learned from this decision is to be sure the IEP is
clear with respect to a student's needs which will be addressed. Under
IDEA it is then the district's obligation to provide qualified personnel
to address the needs. The IEP would have to reflect all personnel
generically by position (e.g., aide, program or service) in these regards.
A similar dispute may well arise in providing services to students with hearing impairments. Training programs are now being established for "educational interpreters" who in addition to providing the customary sign language interpretation also assist the student instructionally with respect to the subject matter being taught, similar to an instructional aide. Again in this context, it is important to identify the need for/function of the interpreter to hopefully avoid a dispute as to the qualifications of the personnel who will perform the function. ~~~Return to the TOP
DISTRICT ORDERED TO PROVIDE
SERVICES FOR STUDENT WITH EXCESSIVE ABSENCES
A hearing officer in Maine ordered a district to identify a student
with excessive absenteeism and a pattern of misconduct as Behaviorally or
Other Health Impaired and to develop an IEP which would permit her to
benefit from her regular education program. Maine Sch Admin Dist,
20 IDELR 298.
The parents of the high school student alleged that a district failed
to properly evaluate the student for special education services despite
the parents' request to do so. They stated the district sent numerous
letters informing them of her truancies, her repeated use of profanity
toward school administrators and detentions and suspensions for
misconduct. The parents also claimed that many of the absences were for
legitimate health reasons.
The hearing officer ruled it was clear the student had medical and behavioral issues that interfered with her ability to benefit from her regular education program and that she is eligible under IDEA. He stated that the student missed 92 days of school in one school year and that the district should have correlated the absences and the misconduct to a need for intervention. In addition, the district failed to report the student's truancies to the proper authorities for enforcement of state truancy laws. The hearing officer noted that the parents inappropriately permitted many of the absences, appearing at times to be finding reasons for her to miss school rather than minimize the time missed (e.g., doctor appointments at educationally disruptive times).
IMPLICATIONS:
This scenario regrettably is not uncommon. When it occurs general
education administrators or others too often do not call the situation to
the attention of either special education or 504 personnel. While many
students who have excessive absences may not be eligible for services
under either IDEA or 504, districts would be well advised to sensitize
their general education administrators, counselors, and other appropriate
staff of the possibility that excessive absences, when combined with one
or more other factors (e.g., health problems, behavioral problems, a lack
of success academically, etc.) may signal a student possibly eligible for
services under IDEA or 504. While a formal comprehensive evaluation need
not be immediately initiated whenever a situation involving excessive
absences arises, a general assessment of the situation, including contact
with the parent and student, would certainly be warranted.
Regrettably, to the extent student and/or parental attitudinal problems
are impacting the situation, the district has few options to pursue and
those (e.g., petitions regarding truancy or related grounds) in many
probate courts are not effective. Still, the failure of the district to be
cognizant that these situations may have special education/504 service
implications could leave the district later being required to address a
much more difficult situation. Further, where a parent had made a referral
as here and the district failed to properly follow through, if the student
is eligible, the parent could seek relief which might include potentially
compensatory education and even damages.
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COURT FINDS IMMUNITY IN
DISTRICT'S FAILURE TO CATHETERIZE STUDENT
An Alabama
court dismissed school administrators and a school nurse from a suit but
permitted a student with spina bifida to proceed against a special
education aide on a claim that she suffered mental and physical injuries
when the aide failed to catheterize her. Nance v Matthews,
20 IDELR 3.
A student with spina bifida claimed that a principal, special education
supervisor, and school nurse were liable for negligent supervision and
training of a special aide when the aide failed to catheterize her after
being informed of the need to do so.
In dismissing the claims against all but the special education aide,
the court stated that qualified governmental immunity prevented the
student's claims against the administrators and the school nurse because
they were engaged in discretionary, as opposed to ministerial, tasks in
training and supervising the aide. A discretionary function is one that
requires constant decision making and judgment on the part of the
employee. Government officials and employees involved in discretionary
functions are immune from lawsuits absent allegations of bad faith, fraud
or acts beyond their authority, not present on these facts.
IMPLICATIONS:
Potential damage liability is the basis for a great deal of anxiety
among administrators and even more so district staff providing services
directly to students with disabilities. Such is particularly true when
those services happen to be school health services to a medically fragile
student. News stories regarding suits being filed of this type make
headlines. But you must be careful in gauging your conduct based upon them
for a couple of reasons. First, when the suits are dismissed, rarely is
such mentioned in the newspaper or professional periodicals. Second and
even more importantly, the law regarding when district staff are
potentially liable, including when they have immunity, varies widely from
state to state.
This Alabama case is mentioned here because it is an excellent example
of a decision holding that an aide may be potentially liable for damages
in a state where the immunity granted under its laws is much more limited
than under Michigan laws. Prior to July 1, 1986, the immunity of a
district employee under Michigan law was analyzed as it is now under
Alabama law, namely, was it a discretionary or ministerial act. No one was
ever sure which was which, including the courts!
In 1986, the Tort Reform Act was passed, covering not only district
employees but volunteers as well. It avoids any analysis as to the nature
of the Act by providing broad immunity to district employees acting in the
course of their employment (or voluntary service) and within the scope of
their authority, providing the employee's conduct does not amount to "gross
negligence." Gross negligence is defined as conduct so reckless that
it demonstrates a substantial lack of concern for whether injury results.
Accordingly, in Michigan, this aide might have been held liable, but
solely because the aide was grossly negligent by totally ignoring the
known need of the student when addressing this need was her responsibility
and she apparently lacked any concern for whether injury would result.
This situation must be distinguished from one where the aide possibly did
or did not make a mistake in catheterizing the student and injury
resulted. In this situation, in all likelihood no potential liability
would accrue in Michigan, whereas, it very well might under Alabama law.