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1994-95 Vol. 8, No. 6
An
"Ounce of
Prevention..."
News
Information and Ideas from IPPSE for Practical Problem Solving in Special Education
VIRGINIA LOSES ARGUMENT THAT
PROGRAMMING SHOULD NOT
CONTINUE FOR EXPELLED STUDENTS
After succeeding in obtaining an order from the 4th Circuit Court of Appeals that the U.S. Department of Education could not withhold its Part B funds pending a hearing on the legality of Virginia's policy of refusing post-expulsion services to students with disabilities, the hearing was finally held and Virginia lost. Virginia Dept. of Ed., 22 IDLER 474(1995).
The hearing was initiated by the U.S. Department of Education to
withhold Part B funds from Virginia given its "no post-expulsion
services" policy. The sole issue was whether IDEA and its regulations
required the continued provision of special educational services to
persons who have been expelled or suspended long term from their current
school settings when their conduct was not caused by their disability. It
was noted that it was not the function of the hearing officer to consider
the wisdom of providing such continued services, or whether or not the
services constituted a good educational policy. Despite IDEA having been
in effect for almost 20 years this was the first withholding proceeding
under the statute.
In finding that IDEA requires such services the hearing officer pointed to innumerable cases finding such, despite the fact that neither IDEA or its regulations contain explicit language to that effect. Noting that there are no exceptions under the statute for dangerous students and that IDEA is a remedial statute whose provisions need to be broadly constituted to effectuate its purposes, the
hearing officer even found the new Gun-Free Schools Act supported the
Department's interpretation when it allowed districts to place students
with disabilities who bring firearms to school in interim alternative
educational settings up to 45 days.
Virginia also contended that if providing services to such students was to be required the Department needed to effectuate this through rule promulgation, not through an interpretive ruling. This argument was also rejected by the hearing officer based upon the 7th Circuit Court of Appeals prior decision in Metropolitan School District v Davila, 18 IDLER 1226, in which the state of Indiana pressed the same argument and lost.
IMPLICATIONS:
Virginia now has the right to appeal the hearing officer's decision to Secretary of Education Riley and thereafter to court, if necessary. Given the prior ruling of the 7th Circuit and the deference given an agency with regard to its interpretations of the statute it is charged with administering, the likelihood of Virginia succeeding is remote. More likely is a strong effort being made by several organizations in connection with the re-authorization of IDEA to have the Act explicitly amended to state that continued services need not be provided to students with disabilities who are expelled for behaviors unrelated to their disabilities.
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DISTRICT CAN ESTABLISH MAXIMUM ALLOWABLE
CHARGE FOR AN IEE
The Office of Special Education Programs (OSEP) has again clarified that
a district, to avoid unreasonable charges for an independent educational
evaluation (IEE), may establish maximum allowable charges for a specific
test. Anonymous, 22 IDELR 637 (OSEP, 1994). But, if a district
chooses to do so, the maximum cannot simply be an average of the fees
customarily charged in the area by professionals who are qualified to
conduct this specific test. Rather, the maximum must be established so
that it allows parents to choose from among the qualified professionals in
the area and only eliminates unreasonably excessive fees. In addition, the
district must allow parents the opportunity to demonstrate the unique
circumstances justifying an IEE that does not fall within the district's
criteria. If a parent can show such justification, then the IEE would need
to be publicly funded, or the district would need to request and pursue a
hearing.
Should a district choose not to adopt cost criteria, the parents are
free to obtain the services of any qualified evaluator. If the district
then believes that the fees charged are unreasonable, it has the option of
either paying the fees charged or requesting and pursuing a hearing at
which it would need to show the fee was unreasonably expensive.
IMPLICATIONS:
Under IDEA regulations, if an IEE is to be at public expense it must be
conducted by a qualified person under the same criteria as would be
required of the district. Many districts fail to establish any criteria
for IEEs, which can include a maximum fee provision in accordance with the
above ruling. Others adopted such policies or guidelines years ago, but
have failed to review or update them to ensure they are consistent with or
include some of the benefits provided in more recent OSEP rulings.
It would behoove all districts to take a moment and review whether they have IEE policies or guidelines, and, if so, when is the last time they were updated. OP News will make available on request a model IEE policy which can be adapted by a district to meet its specific needs and approach. ~~~Return to the TOP
PARENT GETS ATTORNEY'S FEES FOR
FIGHT TO GET ATTORNEY'S FEES
Where a parent files in federal district court to obtain attorney's fees
arising out of an IDEA hearing in which she prevailed, the parent is
entitled to attorney's fees expended in the district court to obtain
reimbursement of the attorney's fees incurred during the hearing. Harris
v Nenana City Pub Sch, 22 IDELR 352 (9th Cir, 1995).
In this case, the Ninth Circuit Federal Court of Appeals held that
unlike an ordinary civil case, if a parent wants to introduce new evidence
regarding attorney's fees being claimed, the parent had better tell the
court or it could proceed to determine the attorney's fees based upon the
record established below. Moreover, in determining an appropriate award of
attorney's fees under IDEA, the court applied the standard set forth in
the Hensley decision of the U.S. Supreme Court. Under Hensley,
the court must first determine a reasonable attorney fee by multiplying
the number of hours reasonably spent on the hearing by a reasonable hourly
rate. This amount is then subject to reduction when a parent who prevails
succeeds on only some of its claims for relief. The court must address
whether the failed claims related to the successful claims, and, if not,
award no fees for the hours spent on unrelated claims. If the parent's
overall success is limited, a court may reduce the award even if the
claims are interrelated. In short, the court noted it has discretion to
make this equitable judgment, but must clearly explain its reasons for
doing so. For example, here the Ninth Circuit noted the District Court
further reduced the award due to the fact it found the parent during the
hearing had unreasonably protracted the final resolution of the
controversy.
The Court of Appeals found the District Court had
erred in failing to consider the amount of attorney's fees the parent
should be reimbursed for having prevailed on the attorney's fees issue in
the District Court. In remanding the matter back to the District Court to
determine the appropriate amount of attorney's fees, the Court of Appeals
noted that such had to be granted to some extent inasmuch as the parent
did receive some reimbursement of attorney's fees for the IDEA hearing
unless the District Court found "special circumstances" existed,
e.g., the awarding of fees would not further the congressional purpose in
enacting IDEA or was not justified balancing the equities present in the
situation.
IMPLICATIONS:
The holdings of
the Ninth Circuit Court of Appeals are not binding on us in Michigan
inasmuch as we are in the Sixth Circuit. However, this decision provides
an excellent summary of many of the basic principles regarding a parent's
right as a prevailing party to obtain reimbursement for attorney's fees.
Bottom line, both districts and parents must remember that the court
has fairly wide discretion in the amount of attorney's fees it will award
a parent as a prevailing party in applying the various considerations and
factors noted above. Unless a parent basically prevails on everything of
any significance at the IDEA hearing, did not engage in any dilatory
tactics and there are no special circumstances present, the parent will
probably not receive full reimbursement. But, significant is the fact that
the law provides the parent reimbursement of the attorney's fees they
expend in obtaining the award of attorney's fees at the District Court
level. As a practical matter, the total cost of fighting attorney's fees
in terms of paying the district's own attorney, and reimbursing the parent
for litigating attorney's fees, would most likely be in the range of
$2,500 to $7,500. Therefore, once a request for an IDEA hearing is made
and a parent has an attorney, if the district makes a move of any
significance, the issue with rare exception will not be whether the
district will reimburse the parent for attorney's fees, but only how much!
The person who rows the boat generally doesn't have time to rock it.
--Anonymous ~~~ Return to the TOP
HEARING OFFICER RULES MED EVAL
MUST INCLUDE NEUROLOGICAL EXAM
Where an IEPC
sought a medical evaluation due to a student's severe depression, a
district balked at paying for a neurological examination as part of it.
Northeast Indep Sch Dist, 22 IDELR 523 (1995).
Here, in addition to depression, the student was exhibiting signs of anxiety, irritability, and educational frustration. When the medical examination was sought, the psychiatrist who commenced it stopped, finding that a neurological examination was a necessary component. The district refused to pay for the neurological and the parent requested a due process hearing. The hearing officer found the neurological examination to be an appropriate part of a medical examination here where the results might detect the existence of certain conditions which would assist the IEPC participants in developing an appropriate program for the student.
IMPLICATIONS:
Medical examinations are sometimes
necessary. But, they can often be costly and expensive. In preparing for a
MET or IEPC meeting where there is a likelihood that the need for a
medical evaluation will come up, districts would be well advised to
discuss with a medical consultant or potential evaluator, the
circumstances which prompt their considering such an examination. This
allows the district to explore the possible components of that evaluation
which the physician believes might be necessary or appropriate. In
addition to being helpful to the MET or IEPC participants in assessing
whether a medical evaluation should be pursued, it would also give the
district a better handle on the time the evaluation might take, its costs,
and the potential for covering part of those costs with third parties such
as a health insurer or Medicaid.
The best inheritance a parent
can give to his children is a few minutes of his time each day.
--O.A. Battista
THIS MONTH'S Q&A
Q Can a district under
IDEA ever be responsible for providing preschool programs to
preschool-aged children with disabilities where the district does not
provide preschool programs to children without disabilities?
A
Yes. OSEP recently reaffirmed its prior position in this regard, namely if
an IEPC determines that a preschool aged child with a disability needs
interaction with nondisabled peers, in addition to stand alone services, a
district would be responsible for making an appropriate program available,
e.g., pay the tuition for a private preschool, utilize a headstart or
similar programo, 22 IDELR 630 (OSEP, 1995).
IPPSE:
Institute for Problem Prevention
in Special Education
2143 Commons Parkway
Okemos, MI 48864-3987
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