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1994-95 Vol. 8, No. 12

An "Ounce of Prevention..." News

Information and Ideas from IPPSE for Practical Problem Solving in Special Education

FEDERAL DISTRICT COURT RULES NO SERVICES

NEEDED DURING SHORT-TERM SUSPENSIONS

A federal district court for the northern district of Alabama has ruled that a school district need not provide services during short-term suspensions, even if those suspensions are related to the student's handicapping condition and even if those short-term suspensions exceed ten school days per year. Eric J v Huntsville City Bd of Ed, 22 IDELR 858 (ND Ala, 1995).

Eric J. was first referred for special education services in 1986 while a second grader at Lakewood Elementary School. He was determined eligible for special education services due to a learning disability and ADHD. Eric had significant behavioral problems throughout his elementary school and middle school years. Over those years, various IEPs were developed in an attempt to deal with Eric's behavioral problems, including incorporating the use of a teacher consultant for emotionally impaired and the use of a behavioral management plan. The behavior management plan was designed to reward appropriate behavior, as well as to utilize increasingly severe consequences for inappropriate behavior. Eric was given the ability to use a "red card" to indicate a need to leave the classroom, or to consult with various counselors or teacher consultants.

Notwithstanding these provisions, Eric continued to have behavioral difficulties. These included being disruptive in the classroom, being vulgar and using profanity to teachers and other students, minor incidents of assaultiveness toward other students and teachers, throwing books and \other instructional materials, leaving the classroom without permission, and a refusal to remain seated and on-task. Such behavioral difficulties were dealt with by redirection, removal from the classroom to a study area with the teacher consultant, removal from the classroom to the principal's office, detentions, in-school suspensions, etc.

During the 1992-93 school year, Eric's behavioral problems escalated. Eric would become increasingly threatening and abusive toward his teachers and other classmates. The behavioral plan was modified to include daily instruction and guidance from the teacher consultant to assist Eric in appropriate behavior. The plan called for additional positive reinforcement as developed by the teacher consultant. During an incident in which Eric's inappropriate behavior escalated in the classroom setting, it became apparent that Eric was unable to take a "time out" in the classroom, and was requested to leave. Upon leaving, he began throwing rocks at the walls and windows of the portable unit. He then returned to the classroom and confronted the teacher, making several verbal threats. Finally, other students persuaded Eric to leave the classroom. Following this incident, Eric's plan was again modified to provide for an instructional aide to accompany Eric while in school.

Between September 1992 and March 1993, Eric accumulated a total of 12 days in out-of-school suspensions, over the course of three separate suspensions. The longest single suspension totaled five consecutive school days. In March, the principal wrote a memorandum to the attendance specialist at the school board, recommending that Eric be expelled from school due to his "continued violation of rules and his repeated use of profanity on more than one occasion and after repeated warnings." The chronology attached to the memorandum indicated that Eric had been suspended in-school on seven different occasions, and suspended out-of-school on three different occasions. An administrative hearing regarding the expulsion was scheduled for March 24, 1993.

On March 23, an IEPC meeting was convened to determine whether or not the incidents giving rise to the recommended expulsion were related to Eric's disability. The administrative hearing scheduled for the following day was to consider whether or not Eric was "guilty of the charges." On March 24, Eric's parents sought a continuance of the hearing, which was rescheduled for April 7. On April 5, 1993, the parents requested a due process hearing on the March 23 IEPC, and specifically requested that "stay put" provisions be invoked during these proceedings.

The issues addressed in the due process hearing were whether or not the district had failed to provide Eric with a free and appropriate public education by (1) failing to devise and/or implement an appropriate behavior management plan, and (2) failing to provide Eric with education services while he was assigned to out of school suspension.

The local hearing officer ruled in favor of the district on both issues. The parents appealed the matter to federal district court. As to the first issue, the district court affirmed the hearing officer and found that the behavior management component of Eric's IEP was designed to provide an opportunity for a meaningful educational benefit from his public education. The court did so after a lengthy summary of behavioral problems exhibited by Eric, as well as the suspensions and other consequences imposed for such behavior.

In looking at the latter issue, the court noted that Honig v Doe mandated that special education services could not be eliminated if a student were expelled or indefinitely suspended. It also noted that Honig had found that when a child is suspended for more than ten days, that "long-term suspension" could constitute a significant change in placement within the meaning of the IDEA. The parents argued that any cessation or interruption of educational services violated the Act because it worked a deprivation of a free and appropriate public education. The parents cited to Doe v Maher and S-1 v Turlington as supportive of their position. However, the district court disagreed with the parents, finding that Doe v Maher specifically approved the use of two and five-day suspensions, and S-1 v Turlington dealt with the cessation of services to handicapped students while they were expelled or indefinitely suspended, not on short-term suspensions.

After discussing the requirements of IDEA, the court held:

[T]o conclude that a student engaging in such [violent] conduct should be removed from the classroom environment or indeed from the school itself is an appropriate educational function. The Huntsville City School system is required to adhere to the dual mandates that Eric be provided a free and appropriate public education inasmuch as possible within a regular classroom environment and to devise a behavioral management plan which addresses Eric's unique educational needs. In the present case, Eric's unique needs have required his short-term suspension from his school. Nothing in the Act prohibits this measure.

The court concluded that nothing in the IDEA prevented the school district from utilizing suspensions as a form of discipline and that the district need not provide educational services

during those short-term suspensions, notwithstanding that the suspensions may total in excess of ten days in a school year.

IMPLICATIONS:

This case is the first to address the gap existing between federal policies relative to a district's responsibility to provide services during "long-term" or indefinite suspensions (more than ten consecutive days) and expulsions, as compared to short-term suspensions of ten days or less. Although it is clear that a district must continue to provide educational services when a student is suspended for "long term," an indefinite time or expelled (see 22 IDELR 372 (OCR, 1995)), no direct guidance has previously been given relative to a school's responsibilities on short-term suspensions. This issue becomes all the more timely given OSEP's recently adopted position that it will henceforward use OCR's "pattern of exclusion" standard (as opposed to a mechanical ten day count approach) in judging whether one or multiple suspensions constitute a change in placement. See OSEP Memorandum 95-16, 22 IDELR 531. In that same memorandum, OSEP stated its opinion that "[t]here are no specific actions under federal law that school districts are required to take during this time period (suspension of ten days or less). While some parents take the position that no "punishment" is permissible if the misconduct in question is related to the child's disability, OSEP further concluded that "no prior determination of whether the misconduct was a manifestation of the student's disability is required before [study carrels, time-outs, other restrictions in privileges, suspension for up to ten school days] can be implemented."

While a number of short-term suspensions may amount to a change in placement under Honig, this case seems to indicate that a school district may use several short-term suspensions during a school year, which amounts to more than ten school days in the academic year, and still not be required to provide educational services during those suspensions. Implicitly the court reasoned that, depending on the reasons behind the suspensions, even suspensions which total in excess of ten days may not amount to a change in placement. The issues which will determine whether or not the suspensions work a "change in placement" seem to relate to whether the suspensions are in close proximity to each other, the length of the individual suspensions, and the intended purpose behind the suspension, i.e., where truly short-term suspensions are used in conjunction with a behavioral intervention plan in an attempt to modify behavior. It should be noted that the district in Eric J used in-school suspensions and detentions far more frequently than any out of school suspensions in an attempt to modify the behavior. Only when the behavior escalated were short term out of school suspensions (ranging from three to five days) used.

Be careful in using suspensions in conjunction with the behavior plan. Documentation is crucial. The district in Eric J. was continually documenting, modifying and discussing changes for the student's behavioral plan, and seldom resorted to out-of-school suspensions. A district is well-advised to document the steps taken through the behavior plan, as well as the less intrusive methods of discipline such as in-school suspensions, detentions, time outs in school, removal to a resource room, or study area, etc., in order to justify the increasing "penalty." Several short-term suspensions immediately following one another would raise a question whether or not the district is in fact attempting to exclude the student without using the proper procedures, rather than appropriately using short term suspensions. Review the behavior plan of the student each time an IEPC is held to decide whether modifications need to be made. By documenting a district's actions in this manner, the district can probably show that it was attempting to modify behavior and to use appropriate interventions rather than merely excluding the student. And, when in doubt, a district can never go wrong by sticking to the "rule of ten," i.e., convening an IEPC whenever the suspension count approaches ten.

REIMBURSEMENT FOR IEE DENIED

Where the district's evaluation was not inappropriate, a school district was within its rights to deny the parent's request for reimbursement of an independent educational evaluation (IEE). In Millcreek Twp Sch Dist, 22 IDELR 1011 (SAE Penn, 1995), the student entered elementary school in January 1992. As part of the initial evaluation of this student, the school district had agreed to pay for an evaluation conducted at the Western Pennsylvania School for the Deaf (WPSD). This evaluation was included in the initial evaluation materials which found the student eligible for special education programs and services as hearing impaired.

The student continued in school for the following two years. In December 1993, the parent of the student requested that the district pay for another IEE from the WPSD. The district responded by agreeing to begin the reevaluation process, but refused to pay for any additional assessment at the WPSD.

In February 1994, the parents obtained an evaluation from the WPSD. At the time of obtaining this evaluation, the school district was in the process of completing the three-year reevaluation. On April 6, 1994, the parent of the student notified the district that (1) her position remained that the evaluation from WPSD was required for the student's reevaluation, (2) that although she had not yet received the report from WPSD, she would forward it as soon as she received it, and (3) that the school district's use of an interpreter for any of the reevaluation process was unacceptable. She further indicated that no consent was given for the district to complete any testing or evaluation or do any other procedure which would result in a written report to be incorporated in the multidisciplinary team report. This refusal of consent for evaluation was reiterated on April 28, 1994.

The psychologist collected various data and reviewed prior reports, psychological evaluations, teacher comments, and the speech therapist evaluation. He also informally interviewed the student. With this information, he prepared an initial draft of his comprehensive evaluation report. The district finally obtained the IEE from WPSD in late June 1994.

Pending this reevaluation, the parent had requested a reimbursement for the independent evaluation from WPSD. The district had declined, and requested a due process hearing on March 4. The hearing related to the issue of reimbursement for the IEE. The hearing process was adjourned, however, pending completion of the reevaluation.

On June 1, 1995, the local hearing officer issued a decision requiring the school district to reimburse the parent for the evaluation done at WPSD. It was the local hearing officer's opinion that the evaluation arranged by the parents was appropriate and concluded that it provided "meaningful information which helped to determine the nature and extent of the student's disability," along with necessary programming. Due to his belief that the IEE was appropriate, the hearing officer ordered reimbursement.

The district appealed to a state level review. The state level review officer reversed, finding that the local hearing officer had applied an improper standard. The state level review officer found that the question was not whether the parentally arranged IEE was appropriate or provided meaningful information, but rather whether the evaluation shows that the school district's reevaluation was inappropriate. The parents had not identified any particular disagreement with the evaluation of the district, and in fact had refused consent for the district to complete its reevaluation. The review officer found:

Thus, the parents were not, in terms of reimbursement, legally justified in restricting, in terms of a prior and per se restraint, the district's efforts to conduct an appropriate reevaluation. They had a nonconditional right to arrange for an IEE and to insist that the district take its findings and recommendations into consideration, but not to receive reimbursement. Interestingly, the district's representative for deaf education, arrived at basically the same recommendations as the parent's outside experts before receiving the IEE.

Since the district's evaluation was not shown to be inappropriate, the parent was refused reimbursement.

IMPLICATIONS:

A parent is not entitled to reimbursement unless the district's evaluation is inappropriate. In requesting an IEE, the parent must state that he/she disagrees with the district's evaluation (or lack thereof). Necessarily, this generally requires the district to complete its evaluation prior to the request for an IEE.

Although this is an easy rule to state, many times parents do not understand or follow the rules. In this case, the district followed the "correct procedure" in denying the parent's request for an IEE and requesting a hearing. Regrettably, although winning the battle, they lost the war.

The hearing relative to reimbursement took over one year to complete and required nine days of testimony. The cost of the transcript alone was in excess of $8,000, and this did not include any attorney fees, expert fees, etc. The requested reimbursement was for a total of $400. The state appeals officer commented that such cases appear to be "futile exercises in policy making."

Unfortunately a number of parents have discovered that they literally have school districts "over the financial barrel" when it comes to IEE requests. While a district might consider granting

an IEE on an individual basis, even if it felt its evaluation was appropriate, it may feel the cause is worth fighting if there are other parents "waiting in the wings" for similar independent evaluations. In such instances the district may consider representing itself in the IEE hearing particularly when it has a high comfort level with its evaluation and the parent doesn't disagree with eligibility or present level of performance, but is essentially shopping for program recommendations which are more appropriately the province of the IEPC.

When assessing your own district's responsibility for reimbursement of an IEE, consider the cost of "proving" your evaluation is appropriate. Even a one or two day hearing can cost thousands of dollars. It is generally better to have too much information rather than not enough. If the cost requested for the independent educational evaluation does not exceed the potential cost of a hearing, you may be well advised to err on the side of compromise and pay for the IEE. Only in the infrequent case where evaluation data will have a bearing on significant programming determinations by the IEPC is this type of contest worth fighting.

IPPSE:

Institute for Problem Prevention

in Special Education

2143 Commons Parkway

Okemos, MI 48864-3987

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