1994-95 Vol. 8, No. 5

"Ounce of

Prevention..."

News

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

DISTRICT ESCAPES LIABILITY FOR TUITION

Envision this situation. A parent moved into a district, took her child to the office of the director of special education, who was out, said that her son was "special" and "needed help," left evaluations with the director's secretary, and received from the secretary names of private schools. Three days later the parent enrolled her son in a private school. Subsequently, she sought tuition reimbursement. District liability?

A Tennessee federal court found that a district in such a situation was not responsible for the private school tuition the parent incurred. Robertson County School System v King, 22 IDELR 451 (USDC Tenn, 1995). The mother never enrolled her child in the school. She continued to try and contact the Director and finally did shortly after she had enrolled her child in private school. He explained that her son would need to be evaluated. The mother refused and said that he had already been evaluated. She asked whether the school would pay tuition at the private school and the Director said it would not unless the child where placed in the private school by the IEPC. The child attended the private school for three years, the mother testifying that it was not until over two years after she first contacted the Director that she learned of her rights under IDEA from a neighbor. She then requested an evaluation and for the first time received information on her rights un

The hearing officer ruled in her favor finding that a "referral" under IDEA had occurred in her initial contacts with the Director and that the District had violated her rights to then evaluate her son. The District contended that the hearing officer erred and appealed to the federal district court.(Cont'd)

DISTRICT ESCAPES LIABILITY (cont'd from p. 1)

The court overturned the hearing officer's decision, noting that under Tennessee law a parent makes a referral by informing a district that he or she believes that their child may be eligible and requesting an evaluation. Here whether or not the parent's initial comments constituted a referral, the mother refused to allow an evaluation in her subsequent conversations with the Director. Further, by enrolling her son in a private school, the mother was deemed to have pre-empted the District's responsibility to proceed with an evaluation. The court stated that it would stretch the requirements of IDEA and common sense to suggest that a District spend the time and resources to evaluate a child who was not even enrolled in the District. Thus, because there was no referral and the student was never enrolled, the court found that the District had no duty to evaluate or p

IMPLICATIONS: This District may very well have been lucky to have escaped liability. This court's ruling that a student must be enrolled in a district in order for it to have an obligation to evaluate a student is highly questionable. If a student resides in a district and is referred for an evaluation, even if he or she is attending a private school, the district under IDEA would be obligated to pursue it given the potential obligations to provide the student with services should the student enroll in the district, or even related services at the district or the private school while a student remains at the private school.

Many courts or hearing officers may well have considered the parent's comments and actions to have constituted a referral. Interestingly, the court here placed much emphasis on the parent's refusal to allow the evaluation to proceed, even though the District never provided her with any IDEA rights. Again, other decision makers could have viewed this decision differently.

When parents make contact with the district, possibly through a secretary at the building or special education office, a building principal, a counselor, or general education teacher, indicating that they believe that their child has "problems," "special needs," "is handicapped," "needs special education," or words to similar effect, staff must be trained to bring such information to the attention of some person with knowledge of special education and IDEA requirements in order that he or she can assess the situation. Increasingly, frustrated parents are contacting a variety of school personal who, not being familiar with either IDEA or 504 requirements, fail to take any action in response to concerns which might well be deemed to constitute a "referral." Where such contacts might be deemed a referral and the district has failed to take action, the district could be subjected to a variety of possible claims including, but not limited to, reimbursement of private school tuition, compensatory education, and even damages. At a minimum, when evidencing such concerns or making such inquiries, parents should be provided with notice of their rights under IDEA and Section 504 as well as information regarding steps they might take to make a referral. Putting aside for the moment parental concerns, the district should ensure that general education teaching and administrative staff understand the district's obligations under IDEA and Section 504 to

(See DISTRICT ESCAPES, p 3)

DISTRICT ESCAPES LIABILITY (cont'd from p 2)
assure that they are sensitive to situations which might place them on notice of reasonably suspecting that a student is handicapped, e.g., a teacher consulting with a principal regarding a student's academic and/or behavioral problems, a building team discussing such problems, repeated suspensions or behavioral incidents, request for counseling assistance, etc. Here too, all questionable situations should be brought to the attention of a person who can assess the potential obligations of the district under IDEA or Section 504 and give the parents notice of their rights under these acts.

COURT IMPOSES SANCTIONS ON ATTORNEY

FOR FRIVOLOUS LAWSUIT

A federal court recently imposed extreme sanctions where a student's attorney filed suit asserting claims that had previously been settled in connection with a request for a due process hearing. Giangorassov Kittatinny Regional High School Bd of Ed, et al., 22 IDLER 419 (USDC NJ, 1994). Here a student who was EI had been suspended. The parent had originally filed a request for a hearing and the matter was settled after the student graduated from school. When suit was subsequently filed in federal court seeking compensatory and other relief for alleged due process violations that had previously been settled, the court not only dismissed the case but imposed sanctions against the student's attorney. The sanctions were imposed not only for filing a frivolous suit, but also for failing to comply with discovery deadlines, failing to provide opposing counsel with copies of documents, and failing to appear on time for court hearings.

Rule 11 under the Federal Rules of Civil Procedure authorizes a federal judge to impose sanctions on a party or an attorney when actions are taken for an improper purpose, such as to harass. There are a range of sanctions that can be imposed, namely a warm friendly discussion, a hard nose reprimand, compulsory legal education, monetary sanctions, or other measures appropriate to the circumstances. Here the conduct of this attorney was deemed "outrageous." Accordingly, he was ordered to reimburse the District $1,000 in legal fees, was permanently enjoined from filing any further actions against the District, and was referred for disciplinary proceedings.

IMPLICATIONS:

In the last issue of MASEHO News we discussed the decision of an IDEA hearing officer in Indiana who had imposed monetary sanctions against a parent's attorney for not having complied with the hearing officers order to provide the District with certain documents. As noted in the discussion following a description of the Indiana decision, IDEA hearing officers in all likelihood have authority to impose sanctions on the parties or their attorneys in appropriate circumstances. A discussion by the court in the Giangorassov decision, at page 421, should prove helpful if you are confronted with a situation which you believe might warrant a sanction of some type.

OCR CLARIFIES CONSENT, STAY PUT,

FIREARM, AND DRUG USER ISSUES

In a recently issued but undated memorandum, the Office of Civil Rights (OCR) answered the following questions (responses have been paraphrased for the sake of brevity):

1. If a district reasonably suspects that a student is disabled and therefore eligible under Section 504 (but not under IDEA) does Section 504 require parental consent before an evaluation is conducted?

Yes. As under IDEA, parental consent is not necessary except with regard to an initial evaluation and placement. If a parent refuses to consent to an initial evaluation, it is discretionary on the part of the district whether it pursues a due process hearing to override the parental refusal to consent. (Editor's Comment: Also noted, but seemingly contradictory to the aforementioned statement of the laws/regulations, was that with regard to a reevaluation, should a parent refuse to consent a district must initiate a due process hearing.)

2. For a student covered under Section 504 (but not under IDEA) does Section 504 implicitly have a stay put requirement like IDEA?

Yes. To say that a district can go ahead and implement a change of placement, even though the parent has a right to challenge the change, would seem to undermine the rights given by due process hearing. Thus, OCR believes that a fair due process system requires a stay put approach.

3. Does the Gun Free Schools Act and the Jeffords Amendment apply to students who are covered under Section 504, but not IDEA?

Without further explanation than referring the reader to the April 26, 1995, OSEP Memorandum entitled "Questions and Answers on Disciplining Students with Disabilities, OCR simply answers "Yes."

Editor's Comment: It is difficult to know exactly what to make of this question and response because a) the question is ambiguous, i.e., what does "apply" mean? and b) the answer is ambiguous--OCR refers the reader to an OSEP/OSERS memorandum. This memorandum addresses the question "Does the Gun Free Schools Act apply to students with disabilities?" The response in the April 26 memorandum states that the Act applies to IDEA and 504 students in the sense that a student with disabilities who brings a firearm to school may be subject to mandatory expulsion for a minimum of one school year except as modified by the school's chief administering officer on a case by case basis. The latter is construed as the methodology for implementing the manifestation determination required under IDEA and 504. The April 26, 1995, memorandum is silent on the application of the 45-day interim placement option as regards students eligible only under Section 504. The Jeffords Amendment, which contains the 45-day interim placement language, amends only IDEA, not Section 504. It is unclear whether OCR, in its recent undated memorandum, is adopting the 45-day option, as it sometimes looks to IDEA statutory and regulatory language for guidance and parallel implementation, or is sticking to the Q and A language in the April 26 OSEP memorandum and nothing more.

4. What responsibilities does a district have under Section 504 and the ADA to students who were formerly covered solely due to alleged drug use, but who have now successfully completed (or are participating in a supervised drug rehabilitation program) and are no longer engaged in such use? For example, if a district expelled a student who is an illegal drug user for a year, must a district reinstate the student after successful completion of drug rehabilitation?

Under both 504 and the ADA a student who is currently engaging in illegal drug use is not covered. In contrast, a student successfully rehabilitated, or one participating in a drug rehabilitation program who is not currently a user, is covered under both section 504 and the ADA. But both Acts allow districts to take disciplinary action pertaining to the use or possession of illegal drugs to the same extent such action is taken against non-disabled students. Therefore, assuming the student is properly expelled, the district need not reinstate the rehabilitated student before the expulsion period concludes unless the district would reinstate a non-disabled student in a similar situation.

THIS MONTH'S Q&A

Q Is a district required to provide eyeglasses to a visually impaired or otherwise disabled student?

A This answer is based on a recent OSEP ruling. Bachus, 22 IDELR 629 (OSEP, 1994). Initially we must note that Bachus, director of special education for the schools in Wichita, Kansas, indicated he had read OSEP's prior statement on hearing aids (Seiler, 20 IDELR 1216 (OSEP, 1993)). Then, after basically asking the above question, he noted:

I am afraid I know what your answer will be. Has anyone, specifically Congress, considered what this will do to the expenses at the local level? Where does the parent's responsibility lie in such matters? The local districts CANNOT continue to be all things to all people. I am huge child advocate, but when is enough-enough?

(See Q&A, p 6)

THIS MONTH'S Q&A (cont'd from p 5)

Consistent with its prior position on hearing aids, OSEP ruled that inasmuch as eyeglasses are a personal device that the student requires regardless of whether or she attends school, a district is not required under IDEA to provide such. However, OSEP then went on to state that where a district determines a child with disabilities requires eyeglasses in order to receive a FAPE and the IEP specifies such, the district must provide the eyeglasses at no cost. It further noted that eyeglasses "could be" an "assistive technology device" depending upon the determinations of the IEPC.

Regrettably, but predictably, OSEP failed to clarify a district's responsibility to provide eyeglasses where a parent presses the issue at an IEPC even though the eyeglasses would obviously be a personal device that the student would require regardless of whether he or she was attending school. OSEP rulings issued years ago, long before the recent amendments regarding assistive technology devices, ruled that devices requiring personal fitting, such as eyeglasses, were not required to be provided by a district under IDEA. See Minsky, EHLR 211:19 (BEH, 1977).

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