RETURN TO THE OP NEWS INDEX April 1998, Vol. 11, No. 8
An "Ounce of Prevention..."News
Information and Ideas from LaPointe & Associates for Practical Problem Solving in Special Education
On April 23, 1998, the Michigan Department of Education (MDE)
released a proposed administrative rules package that would very extensively revise the
current Administrative Rules for Special Education. The State Board of Education had been
expected to adopt the package for purposes of public hearing at its April 23 meeting, but
the package was taken off its agenda at the last minute. MDE is also developing separate
rules proposals on preschool services and transition services. It is now expected that the
three rules packages will all be taken up by the State Board at the same time, but action
will be delayed at least until the final federal regulations implementing IDEA-97 are
promulgated and, probably, until after the November election.
The proposed rules package is very lengthy. The proposed rules themselves cover
140 pages, and the package also includes voluminous explanatory material. The entire
package can be downloaded from MDE's Office of Special Education web site or copies can be
obtained from our office at a copying cost of $22 by calling Joan or Jennifer at (517)
349-4121.
We will attempt here to generally summarize the major components of the proposed
package. We would caution, however, that the proposal is so extensive that a summary will
not include many of the revisions and one should not assume a rule is not affected because
it is not mentioned.
Part 1. General Provisions.
Add definitions of "assistive technology device," "assistive technology
services," "general education," "LEA."
Replace term "IEPC" with "IEP team."
Revise or delete numerous definitions, largely to conform with IDEA-97 terminology.
Consolidate categories of severely mentally impaired, trainable mentally impaired, and
educable mentally impaired into a single category of cognitive impairment.
Divide the category of physically and otherwise health-impaired into separate
categories of physical impairment and health impairment.
Revise autism definition to change age of typical manifestation from 30 months to
three years.
Add categories of traumatic brain injury and deaf-blindness.
Part 2. Evaluation, Eligibility, Student Assignment, and Due Process
Procedures.
Revise evaluation and reevaluation procedures to comply with IDEA-97, including IEP
team involvement in assessment planning and requiring district to seek parental consent
for reevaluations.
Revise definition of and requirements for IEP to conform with IDEA-97.
Add IDEA-97 requirement for parental notice to the district when a due process hearing
is requested.
Add 14-day time line on selection of hearing officer.
Revise mediation rule to incorporate IDEA-97 provisions.
Add IDEA-97 attorney fee provisions to civil action rule.
Add new rule incorporating IDEA-97 discipline provisions.
Part 3. Administration of Programs and Services.
Rescind all categorical program rules, except speech and language services, homebound
and hospitalized services, programs and services for children with pre-primary impairment
and students in juvenile detention facilities. The IEP team would determine the need to
assign a student to a teacher with a particular endorsement. Teacher case loads and aides
assigned to programs would be identified in the ISD plan.
Rescind the teacher consultant and curriculum consultant rules and permit teachers to
provide consultation.
Rescind the resource room and departmentalization rules.
Part 5. Qualifications of Teachers and Other Personnel.
Rescind the rules for approval of teacher consultants and curriculum resource
consultants.
Rescind the rule on qualifications of instructional aides.
Part 6. Financing.
Revise the distribution of intermediate district millage when revenues are insufficient
to reimburse all claims to limit full reimbursement to ISD services available to all
districts and reimburse all other ISD and constituent district programs and services at
the same percentage.
Part 7. Development and Submission of Intermediate School District Plans.
Change ISD plan submission requirements beginning in 2000, consistent with IDEA-97, to
permit plans to remain in effect until modified.
Require the ISD plan to establish maximum case loads for each teacher, which cannot
exceed an average of 13 students by head count or 8 students by professional contact time.
"Professional contact time" is a new term which is not defined in the proposed
package. The ISD plan would define the components of professional contact time.
Require the ISD to include the number of paraprofessionals in program descriptions and
maintain at least the same mandated aide per student ratio as in the 1997-98 school year.
There are no proposed revisions to Part 4, Qualifications of Directors and Supervisors,
or to Part 8, Complaints, and only minor editorial revisions to Part 9, Records and
Confidentiality.
While many of the proposed revisions are either mandated by IDEA-97 or desirable to
ensure consistency with IDEA-97, some are discretionary proposals of MDE. Chief among
these are the shift in responsibility for program design from the rules to the ISD plan,
providing limited authority in the ISD plan to determine case loads and assign program
aides, and allowing the IEP team to determine the need for a teacher with a particular
endorsement.
Is there any reason to be concerned about this rules package at this time, when it
likely will not be submitted to public hearing for many months? We believe there is.
Prior to their adoption by the State Board for purposes of public hearing, MDE can
freely revise the proposed rules. Once the proposed rules are submitted to public hearing,
however, our past experience has been that MDE is very reluctant to substantially revise
proposed rules out of concern that they will then be required to submit the revised rules
to a second round of public hearings. Thus, as a practical matter, feedback to MDE on the
proposed package may well be more effective now than waiting for the public hearings.
RETURN TO THE TOP
The Eighth
Circuit Court of Appeals ruled in Cedar Rapids Comm Sch Dist v Garrett F.,
25 IDELR 439 (8th Cir, 1997) [OP News, Vol 10, No 8], that under IDEA a school
district is required to provide medically related services to a student with disabilities
if these services are required to enable the student to benefit from special education and
they can be provided in the school setting by a non-physician (i.e., nurse or qualified
lay person). This decision clearly conflicts with decisions of other courts of appeals,
most notably Detsel v Bd of Ed of Auburn Enlarged City Sch Dist, EHLR
558:395 (2nd Cir, 1987), and Neely v Rutherford Co Sch, 23 IDELR 334 (6th
Cir, 1995), which found that Congress did not intend under IDEA to require districts to
provide certain "medical" type services when those services were invasive,
continuous/intensive or required a high level of expertise to administer.
The Supreme Court has now agreed to hear the Cedar Rapids case. The case will
probably be scheduled for argument in October or November with a decision being expected
to issue in spring of 1999.
IMPLICATIONS:
The Cedar Rapids case is contrary to OSEP's interpretation and the great majority of judicial decisions on this issue (including our own Sixth Circuit Neely decision). See Letter to Anderson, 24 IDELR 180 (OSEP, 1996). Hopefully, the Supreme Court will give us a definitive answer on whether districts are required to provide these services. The case does present, however, a number of narrower issues and it is possible that the court will decide the case without answering the central question. In the meantime, districts in Michigan should continue to follow Neely.
On
occasion, parents in attempting to advocate for their children take actions which the
district considers disruptive of the school environment and the district responds by
taking an action directed against the specific parent. Are there limits on permissible
advocacy? May districts single out parents without violating their rights? The Office of
Civil Rights (OCR) has considered a number of these situations in investigating parental
complaints of retaliation.
In Cherokee City (SC) Sch Dist, 16 EHLR 323 (OCR, 1989), district policy
required visitors to sign in at the office but parents were encouraged to visit at any
time and the sign-in policy was not strictly enforced. District policy and state law
prohibited taking pictures of students without permission. A parent entered the school,
went directly to classrooms and began taking photos, allegedly to show that the district
discriminated against handicapped students by calling attention to their classrooms with
signs. Two staff requested her to stop and check with the principal. She refused, finished
taking the pictures and left the building. The police were called and she was subsequently
arrested and charged with "disturbing the schools." OCR concluded that the
district acted because she violated district and state policies in taking photos of
students and defied the request to report to the office and found no violation of her
rights because "the protections of Section 504 do not extend to unlawful
acts."
In Sch Dist of Philadelphia, 24 IDELR 1188 (OCR, 1996), school policy stated
that no visitor could remain at the school without permission of the principal nor could a
visitor go directly to a classroom to speak to a teacher without approval by the
principal. The parent had withdrawn her student in March. In June, she received notice of
an IEP review. She then requested a due process hearing. When she appeared for the IEP
review, she was informed it had been canceled because of the hearing request. She became
hostile and verbally abusive. She then went to her child's former teacher's classroom
during class and requested to speak to the teacher, who responded that they could meet
after class. The principal requested her to leave the building. She refused to leave
without speaking to the teacher. School security was called but could not get her to
leave. The police were then contacted and, when she still refused to leave, she was
arrested. OCR found that she was arrested for refusal to leave school premises in
violation of school policy and concluded that Section 504 had not been violated.
In Chicago (IL) Pub Sch Dist #299 (OCR, 1989), there was a history of strained
relations between the parent and principal. The principal had previously instructed the
parent to come to school only when she was acting as a classroom volunteer or doing work
for the PTA. Earlier in the year, she had worked as a volunteer on a school paper which
publicized school activities but recently the principal had staff take over the paper. The
principal discovered the parent in the building, working on publicity. He advised her that
she was not authorized to be in the building and repeatedly asked her to leave. When she
did not respond, he told her if she did not leave he could call the police. She remained.
He called the police who came, talked to her and then allowed her to proceed home. OCR
concluded that the police were called because the parent refused to comply with the
principal's direction and not because of her advocacy activities, notwithstanding the
strained relationship, and found no violation of Section 504.
In Rockdale City (GA) Sch Dist, 22 IDELR 1047 (OCR, 1995), the parent requested
a conference with his son's teachers. School officials advised that, at the teacher's
request, either an administrator would be present or the conference would be recorded to
avoid any future misunderstanding about what transpired at the meeting. This was not the
district's normal practice. The teacher's request was based on previous difficulties with
the parent in which he had filed grievances against and threatened staff and accused staff
of abusing his son. The parent refused the conditions and the conference was not held. OCR
concluded that the district's action was justified and found no violation of Section 504.
Similarly, in Collier (FL) City Sch Dist, 23 IDELR 354 (OCR, 1995), at a
conference with a teacher, the parent became verbally abusive. The teacher stated that the
parent was confrontational and threatening and requested that someone else be present at
any future meetings. Three days later, the parent delivered a letter to the student's aide
regarding a discipline incident. The principal issued letters to the parent stating that
she should come to the office and not go directly to any classroom without permission,
request copies of written work through the office or counselor and arrange any teacher
conference with the office and it would be held in his presence. District visitor policy
required visitors to check in at the office. In fact, parents were normally permitted to
directly visit classrooms but other parents had been limited because of disruptive
behavior. OCR did not find a violation of Section 504.
IMPLICATIONS:
These letters of finding illustrate that, while parents generally have a right to visit their child's classrooms and to meet with teachers and staff regarding their child's program, the district has a right to reasonably regulate access to school buildings and staff. A district is required to apply its access policies evenhandedly and cannot single out parents because they are unusually demanding or assertive or even unlikeable so long as they remain civil. Parents do not have a right, however, to be disruptive, abusive, or threatening. In these situations, districts may take actions to deny direct access to classrooms and staff but should still permit either indirect access or access with a third party present. In extreme situations, parents may even be removed from a building but this should be rare and the reasons well documented if it does occur.
Q When a parent requests a due process hearing, does return of the
parental notice form have any effect on time lines?
A No. IDEA-97 requires that, when a parent requests a due process
hearing, the parent or the attorney representing the child shall provide notice to the
district of the name and address of the child and the name of the school attended, a
description of the nature of the problem relating to the proposed initiation or change and
a proposed resolution of the problem to the extent then known and available to the parent.
Despite the statutory language requiring this notice, the only consequence specified in
IDEA-97 for not providing it is that attorney fees may be reduced if the parent attorney
did not provide the appropriate information. The proposed regulations are even clearer and
specifically state in Section 300.507(4) that "a public agency may not deny or delay
a parent's right to a due process hearing for failure to provide the [parent] notice
required in [the regulation]."
This question is really only one example of a broader issue regarding delay in due
process hearings. Despite the 45-day time line in both the current and proposed federal
regulations from the receipt of the request to completion of the hearing process,
selection of the hearing officer is commonly delayed because the district is waiting for
parent notice or other information in hopes the matter can be resolved without a hearing.
Such delays are potentially risky and are discouraged. Generally, selection of a hearing
officer is ultimately necessary anyway and resolutions usually occur when the parties are
facing deadlines and not when the matter is simply drifting.
LaPointe & Associates, P.C.
2143 Commons Parkway
Okemos, MI 48864-3987
