Noting that the case presented an issue of "first impression" in the State of Massachusetts, a state superior court ordered a public school to honor a do not resuscitate (DNR) order regarding a four-year old girl who was severally disabled, both mentally and physically. ABC Sch v Mr. and Mrs. M., 26 IDELR ____ (S Ct, MA 1997).

After the child's medical condition had deteriorated significantly, the parents consulted with physicians who issued a DNR order. When the parents submitted the order to the school, it refused to honor the order because such was contrary to the school's "preservation of life" policy. That policy required the school's staff to provide whatever means are available to them to preserve and protect the child's life in the event of a crisis. Additionally, several of the school staff members, including its nurse, indicated the belief that honoring the DNR order was contrary to their professional ethics.

The parents contended that the DNR order was obtained for the benefit of their daughter, their right to refuse medical treatment on her behalf was constitutionally protected and the order had to be honored by the school. The court agreed noting that most case law concerning DNR orders arises in the context of health care, rather than educational, facilities. Further, the court pointed out that the school did not object to the validity or merits of the DNR order and, accordingly, the court did not address whether it was in the best interest of the girl.

Various arguments put forward by the school were rejected by the court. First, the school contended a "treating" facility could not be forced to honor a DNR order. The court noted that individual medical personnel in institutions could not be compelled to take "active measures" contrary to their view of their ethical duty toward a patient. Here, such was not the case in that staff were being asked to refrain from giving unwanted or potentially harmful medical treatment to the child in the face of the parents' constitutional right to refuse unwanted medical treatment. As for the school's preservation of life policy, the court noted the DNR order did not conflict with it but merely rendered certain measures listed in the DNR order unavailable to school personnel in connection with this child.

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One of the new provisions in IDEA-97, which has been the subject of much discussion, is the requirement that before either an initial evaluation or reevaluation, the student's IEPC (the IEP team and other qualified professionals as appropriate) develop an "assessment plan." The IEPC is to review existing evaluation data and then on the basis of that review and input from the child's parents determine what additional data may be needed to determine, among other things, eligibility, present level of performance and educational needs, special education and related needs, and whether any additions or modifications are needed to the child's special education programs and services to enable the child to meet IEP goals and to participate as appropriate in the general education curriculum.See Section 614(c). As of July 1, 1998, this assessment plan will also need to consider other "special" factors in the development of an IEP, e.g., behavioral issues, limited English proficiency, need for Braille instruction, language/communication needs for deaf/hard of hearing children, and assistive technology needs. See Section 614(d)(3)(B).

Thus far, we believe most, if not practically all, of the discussion relating to this requirement has been with regard to how to go about implementing it given the responsibility was placed on the IEPC rather than the multi-disciplinary evaluation team (MET). We would suggest that this requirement provides for districts a new opportunity to discuss and hopefully resolve potential disputes with parents concerning an array of issues relating to the evaluation/assessment of a student with disabilities. Previously, while these types of issues would arise, there too often did not seem to be a good opportunity to discuss and address them. With the new responsibilities placed upon the IEPC to develop an assessment plan, a "forum" to discuss these issues is now provided. Among the issues which might be addressed, of course depending upon the circumstances, are the following:

(1) Whether and when the student should be reevaluated, as well as to what extent. Remember in this regard the provisions of IDEA-97 allowing a district to notify a child's parents of its determination that a reevaluation is not necessary and the reasons why, and requiring notice to the parents of their rights to request a reevaluation in any event. Section 614(c)(4). (Warning: At least for the present, unless a district has obtained a waiver allowing otherwise, reevaluations must be conducted pursuant to the requirements set forth in the Michigan special education rules, on the theory that Michigan can require "more" than the "floor" of rights articulated in IDEA-97.)

(2) Parental concerns about the scope of an evaluation, e.g., whether a particular type of evaluation is appropriate/necessary. Recent situations which have come to our attention would include requests for medical exams, neuro-psychological evaluations, vision therapy evaluations, and even certain "programmatic" evaluations relating to inclusion, transportation, etc. Such discussions might avoid a later request by the parent for an IEE.

(3) Parental concerns regarding which district staff would conduct a particular evaluation, or if a district was willing to contract with an outside evaluator, who it would be. Again, an IEE request might be avoided.

(4) Parental reluctance to provide district staff with the records of, and access to, "outside" professionals who have evaluated, treated or provided services to the child, e.g., physicians, psychologists, psychiatrists, counselors, etc.

(5) Parental and/or district request to observe the student in the school or the home as the case may be.

(6) Videotaping of the student as part of the evaluation/assessment process, establishing possible "benchmarks" for assessing subsequent progress.

(7) Communication guidelines between district staff, parents, and "outside" evaluators/ treaters/service providers as a basis for continuous monitoring and data collection for future reevaluation/reassessment of the student.

(8) Where a student is voluntarily attending a private school, the relative responsibilities and coordination of evaluations between a resident district and the district in which the private school the student is attending is located. More specifically in such a situation, the resident district has evaluation responsibilities under IDEA and the latter distrct more limited evaluation responsibilities under the Auxiliary Services Act (see in this regard the "Question and Answer" article on pp 5-6 of this issue).

As with any other IEP, either the parent or district could appeal and request a due process hearing to resolve one or more of the above issues, if it was a hearable issue. Not every dispute, including some of those noted in the above list, would necessarily be hearable, e.g., which qualified district staff person would conduct a particular evaluation.

Interesting, and as yet not totally clear, is how a parent's right to request an independent educational evaluation (IEE) should correlate with this new IEP function and a possible appeal from its determinations. Logically, it would seem that until disputes regarding the assistance plan developed by the IEP are resolved and that evaluation/reevaluation conducted, it would be premature for the parent to seek an IEE contending the evaluation/reevaluation was not appropriate. But, if an IEE request was made "prematurely," we would suggest the district exercise its option to request a hearing. Then, at the prehearing conference, the district should ask that the parent's request be dismissed as premature and, if that is denied, in the alternative, the district should request that the hearing on the IEE be consolidated (even if it means a brief delay) with any pending or possible future appeal by the parent or district of any issues relating to the IEP assessment plan.

No doubt there are other potential problematic issues relating to evaluations/reevaluations and the new IEPC responsibility to develop an assessment plan which are not discussed here. We would welcome your ideas and comments in these regards. At a minimum, we hope the remarks in this article will prompt district staff, and parents, to consider and utilize the IEPC meeting to develop the assessment plan as an opportunity to discuss potential concerns and problem solve.

Q When a student with disabilities is voluntarily placed by parents in a private school outside the resident district, which district is responsible for evaluating the student and providing any requested required services?

A Confusion exists regarding the answer to this question due to the obligations placed on districts under not only IDEA, but also Michigan's Auxiliary Services Act (ASA) (MCL 380.1296) and its regulations (R 340.291, et seq.). Quite frankly, parts of the answer are not altogether clear mostly for the reason that the ASA and its regulations are quite old and have never been updated. Nor are there any decisions or rulings interpreting the interrelationship between IDEA and the ASA.

With regard to evaluations (or reevaluations) under IDEA, even before it was recently reauthorized, it was clear the district in which a student's parents resided has not only child find responsibilities, but evaluation responsibilities as well, whether the student attends a private school in or outside the resident district. See Robertson County Sch System v King, 24 IDELR 1036 (6th Cir, 1996). This obligation on the resident district was firmly reemphasized in IDEA-97 at Section 612(a)(3).

The ASA and its regulations specifically define "auxiliary services" as including certain, but not all types of evaluations, such as psychological, health, and speech. Some parent advocates contend the ASA's reference to "ancillary and related services" and the definition of this phrase in the special education rules (R 340.1701(c)) means auxiliary services include all "related services" as defined under IDEA. But, we do not believe the argument is persuasive since to make it one has to totally ignore the rules under the ASA which actually define "auxiliary services" and use special education rules to in effect define auxiliary services--a jump which both logically and legally is difficult to make. In fact, if such were true, districts would be obligated to provide any and all related services to all private school students at private schools which we believe is far beyond what there is any indication was intended by the Legislature under the ASA. Such an interpretation would also present significant state constitutional problems given its parochiaid provision. In fact, in In Re Proposal C, 384 Mich 390; 185 NW2d 9 (1971), the Michigan Supreme Court forewarned that an expansion of the scope of auxiliary services beyond the health and safety measures as then defined, such as into instructional areas, might well violate the parochiaid provision.

Assuming auxiliary services are as defined in the ASA rules, the district in which the private school is located would be responsible to conduct just those evaluations which are included in that definition, namely psychological, health and speech tests. Whether the resident district wants the district where the private school is located to do them should be discussed by the respective district staffs as well as the coordination of any other evaluations which must be done pursuant to IDEA, e.g., a complete comprehensive evaluation of the student.

It should also be noted that should the parent of a student request an independent educational evaluation (IEE) it would be the responsibility of the resident district to respond to such requests and either pay for the IEE or go to hearing to show its evaluations (including those done by the district in which the private school is located) were appropriate.

Programs and Services:

Under IDEA over the last several years there has been a flood of litigation regarding the extent of the obligation to provide services to students with disabilities voluntarily placed by their parents in private schools. The disputed issue has been whether such students had an individual "right of entitlement" to services or merely the possibility of receiving services depending upon the results of a district consulting with representatives of private schools within it and thereafter deciding what students would be served and how with a prorated portion of the federal monies the district receives allocable to such private school students.

IDEA-97 makes clear if a district offers such a student a FAPE in the district, there is no right of entitlement to any services, i.e., the district has discretion to decide which students will be served, how, and where. In making this decision it seems reasonable to assume most districts where such a student resides would not choose to serve a student in a private school located outside the district given the potential additional costs and/or logistical problems in doing so. However, if the resident district wanted to provide certain services to certain of such students at private schools outside the district, it would be permissible to do so under IDEA.

Clearly, under the ASA, the district where the private school is located is obligated to provide "auxiliary services." Michigan State Bd of Ed v Birmingham Sch Dist (Mich App 1989). But the extent of those services will depend upon how they are defined as discussed above. We believe the proper definition is that set forth in the ASA's own rules which basically limits auxiliary services to non-instructional, diagnostic health and nursing services, street crossing guards, national defense education testing services, speech correction services, "school diagnostician" services, teacher counselor and consultant services and remedial reading services.

As a practical matter, whenever a parent of such a student seeks programs or services, the district contacted should immediately contact the resident district or the district where the private school is located, as the case may be, to discuss: (1) whether the resident district has (or will) provide the student a FAPE; (2)  their relative responsibilities, if any, regarding the provision of the requested services, and, if necessary, to coordinate the provision of such services; and (3) any possible evaluations which might be requested and who will do them as noted above.

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Beekman & LaPointe, P.C.

2143 Commons Parkway

Okemos, MI 48864-3987