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1994-95 Vol. 8, No. 4
An
"Ounce of
Prevention..."
News
Information and Ideas from IPPSE for Practical Problem Solving in Special Education
SIXTH CIRCUIT RULES/TRANSITION ISSUES
Where a student completed the general education curriculum requirements
for high school graduation in June of 1988 but continued to attend classes
until June of 1991, the sixth circuit court of appeals recently ruled that
his being graduated was appropriate since besides meeting the requirements
for general graduation, he completed IEP requirements as well. Churan
v Walled Lake Consolidated Schools, et al., 22 IDELR _____ (6th
Cir, 1995).
Churan, a student with muscular dystrophy, required a ventilator,
suctioning and paraprofessional assistants. His IEPC goals were to pass
mainstream classes, maintain maximum physical functioning in education
setting, receive vocational education, training and exposure to the
equipment and programs. His June 1991 IEP determined that he had completed
his IEP requirements, including various transition activities, even though
the IEP contained no transition plan per se. The IDEA regulations
regarding transition were not promulgated until September 29, 1992.
Despite the lack of a specific transition plan, Churan received a
vocational evaluation, career and college counseling, assistance in
seeking out community employment opportunities, computer/business computer
training and coordination with Michigan Rehabilitation Services. These
transition services commenced in early 1987 even prior to IDEA being
amended to require them in 1990.
Churan asserted several procedural violations of IDEA including failure
to provide adequate notice of termination of services, failure to develop
a written plan for transition services and failure to implement such a
plan.
Back in 1992, Lyn Beekman as the local hearing officer found that the
notice violation was merely technical as much as Churan knew the district
would be proposing graduation and the reasons why. Accordingly, Churan and
his parents were prepared to meaningfully participate in the IEPC. As for
Churan's IEP goals, he found that they had been met as well as the regular
education requirements leading to a diploma. Finally with regard to
transition he found that although the district did not generate a specific
plan entitled "transition services," it did in fact engage in
transition planning and provide appropriate transition services. Thus, the
failure to have a documented transition plan constituted technical
non-compliance but did not result in any substantive deprivation of
program or services. He noted that Churan's apparent desire was to
continue to receive educational services from a K-12 system while
attending a community college because of the related entitlement to OT/PT,
health care aide, and transportation. But he thought postponing graduation
would be inappropriate and really a denial of Churan's maximum potential.
When the decision was upheld by the state review officer, Churan appealed
to federal district court.
In 1993 the district court upheld the hearing officers' decisions. It received additional evidence from Churan in the form of an affidavit from a transition expert. But the expert's report was given "little weight" because she only reviewed Churan's records and not the transcript of the hearing below where the transition services actually provided by the district were comprehensively described. It found that although the transition services were not committed to writing they were provided an adequate period. In doing so the court stated that the Sixth Circuit Court of Appeals acknowledges the importance of compliance with procedural safeguards as set forth in IDEA. But, emphasis on procedural safeguards is with respect to the process by which the IEPC is produced--not a "myriad of technical items that must be included in the written document." Adequate parental involvement and participation in formulating an IEP, not adherence to a long list of items, is the court's primary concern in requiring that
procedures be strictly followed. In finding that, despite technical
procedural violations, IDEA's substantive programing requirements had been
meet, Churan's appeal was denied not only under IDEA but Michigan's
Mandatory Act, Section 504, and the ADA as well. Churan appealed to the
Sixth Circuit Court of Appeals.
The Sixth Circuit basically upheld the hearing officers' and district
court decisions. In doing so it again emphasized technical defects
procedurally do not result in a violation of IDEA if there is no
substantive deprivation.
IMPLICATIONS:
While the Sixth Circuit's attitude toward procedural violations of IDEA being deemed technical if they do not deprive the student of any appropriate program or services is to some extent comforting, beware. Whenever a district intends to "graduate" a student an IEPC is required. Moreover, now that the IDEA transition regulations have been in effect for nearly three years, it can, and will, reasonably be expected that districts will have made a good faith effort to comply. Quite frankly, far too many districts are very vulnerable in the transition service area, both in terms of documented plans and their application. The price to be paid for deficiencies in this area can be high and often are awkward to address. For example, an appeal from a graduation IEPC would result in a stay put which is often meaningless except for the transition aspects; if transition components are deficient, these in turn will not be helpful.
Although the transition plan would be part of the annual review process, its status should come under especially careful scrutiny for all students at least one year before their anticipated graduation or termination of services due to age.
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TEACHER TRAINING COURSE NEED
NOT BE AN IEP
According to a recent decision of the South Dakota Supreme Court in Sioux
Falls Sch Dist v Koupal, 22 IDELR 26 (1994), teacher training
is not required to be set forth in an IEP because it is not a related
service under IDEA.
Here a student with autism had been instructed utilizing the TEACCH
method. Attached to two prior IEPCs was a statement by the student's
parents which required the student's teacher to have a five-day training
course in the TEACCH methodology. The district refused to continue mention
of the training requirement when the IEP was reviewed and the parent
requested a hearing. After the local hearing officer ruled against the
district, it appealed and a lower state court ruled in favor of the
district. The parent appealed to the State Supreme Court.
The State Supreme Court ruled that while the definition of related
services in the IDEA regulations, as well as in the state regulations, is
not exhaustive, it held teacher training was not included. It did so on
the basis where the general words of a statute or regulation accompany the
enumeration of particular classes of things, the general words will be
construed as applying only to things of the same general kind as those
enumerated. Inasmuch as the scope of listed related services clearly fail
to encompass specific teacher training, such was not deemed a related
service and could not be required to be placed in an IEP.
The Court did, however, acknowledge the parent's legitimate concern
stating: "Inadequately trained teachers may deprive her disabled son
of a chance for maximum progress. We must nonetheless observe that
although providing capable teachers may be implicit in IDEA, Congress left
teacher competency in the control of school administrators [citation]. A
parent, no matter how well intention, cannot dictate to a school district,
as part of her disabled child's IEP, how teachers will be trained or how
their competency will be measured."
The Court also rejected the parent's argument that because the district
had included teacher training in the IEP in the past, it could not remove
it from the current IEP. It agreed with the lower court that the contents
of prior IEPs was irrelevant to determining what should be in the current
IEP. There is no requirement in IDEA, it said, which binds school
authorities or parents indefinitely to the terms of an IEP. Rather, it
must be reviewed periodically, not less than annually, and if appropriate,
revised.
IMPLICATIONS:
There are hundreds of principles or rules of construction which courts look to in interpreting statutes and regulations. The court's application of this "rule" in construing a regulation, the comment to which specifically states that the list of related services "is not exhaustive" may be questionable. But, this decision seems to be consistent with a trend of ruling protective of a district's discretion with regard to how an IEP shall be implemented. For example, other recent rulings have opined that the following items need not be in an IEP: A specific teacher or specific classroom (Letter to Fisher, 21 IDELR 992 (OSEP, 1994)); Chapter I or other nonspecial education services (Letter to Montano, 18 IDELR 1232 (OSEP, 1992)); a specific teacher, materials to be used or instructional methods, although a complaint can be filed if a student's needs are not met (Letter to Hall, 21 IDELR 58 (OSERS, 1994)); specific teaching methods and type of reading program because such is within district's discretion, requirement of special education teacher and one on one readingsupport is sufficient
(Brandywine Sch Dist, 21 IDELR 1013 (SEA, 1994)); and, arguably
class size and class composition (Letter to Siegel, 16 EHLR 797
(OSEP, 1990)). But, see to the contrary to the extent class size impacts
on FAPE and the requirement on a district to ensure the student gets
what's on an IEP, Letter to Shelby, 21 IDELR 676 (OSEP, 1994).
Regrettably, OSEP's responses in both the Siegel and Shelby
situations could be fairly described as bureaucratic gibberish, the
meaning of which is difficult to ascertain.
Back in 1989, the OP News contained an article entitled "Drawing
the Line on What's Put in IEPCs--And the Implications!" The pros and
cons discussed in that article remain timely considerations today. (Should
you desire a copy of that article, please contact Laurie or Casie at OP
News and one will be provided.) We would offer some additional tips no
there mentioned:
1. Avoid using the label "addendum" on any document which is
attached to the IEP. The Michigan Department of Education deems anything
labeled "addendum" to be a revision rather than a current
supplement to the IEP, in spite of the facts showing the clear intent of
the parties to the contrary! See MDE Interpretation--at
121. Just label the document "IEPC of 5/14/95--page 8" or words
to that effect.
2. To possibly avoid a due process hearing, consider agreeing with the
parents to informally contact MDE or OCR to inquire as to their view on
whether the item must be included in the IEP or, a formal "friendly"
complaint could be agreed upon to be submitted to either MDE or OCR to
resolve the issue (although specifically agree that it will resolve the
issue and that the parent shall not pursue a due process hearing or any
other avenues of redress, as well).
3. While behavior management plans, transportation plans, and health
care plans might be referenced in a IEP, it would be preferably to not
make them a part of it so as to allow them to be altered without
reconvening the IEPC. If a parent is adamant about a particular aspect of
the plan, e.g., no aversives in a behavior management plan, we would
suggest noting in the IEP that not only will the behavior management plan
be developed (or revised as the case may be), but also expressly note that
the behavioral plan shall not include any aversives).
Bottom line, disputes regarding whether an item should, or should not,
be on a IEP should not be resolved via a due process hearing. There are a
variety of approaches and alternatives to resolve the dispute which
usually can provide a legal response or strike an appropriate balance
between what is often a parent's desire to ensure appropriate programming
and a district's desire to ensure appropriate discretion is maintained.
THIS MONTH'S Q&A
Q What if a student, suspected of having a disability under IDEA, is
initially referred, found eligible under IDEA, and needs services, but the
student's parents refuse them? What options does the district have? How
does it protect itself from potential future litigation?
A The obvious answer is that the district has the right under IDEA
regulations to request a hearing to override the parent's refusal to
consent to the student's initial placement. 34 CFR 300.504(b)(3). But,
such is within the discretion of the district for it is not absolutely
required to do so. Letter to Weintraub, EHLR 211:90 (1979).
Other options a district might consider are of course school social work
services or another type of counseling in an attempt to convince the
parents the provision of services would be in the best interests of their
child. Another option, if the parents are concerned that their child will
be "labeled" under IDEA or what they perceive to be a lot of
process under IDEA, would be to suggest that the child receive services
under Section 504, depending upon the nature of the circumstances. Of
course there are financial implications under this option, since special
education eligibility triggers funding while Section 504 does not. This
gets particularly complicated when a parent wants special education
services under 504, since special education funds cannot be spent on
non-special education students. Pro-rating funding schemes, scheduling,
and special education class size issues will frequently arise with this
approach.
A district has other more aggressive avenues of recourse. But, each will
be highly offensive to the parent, the likelihood of success will be
dependent upon the attitude and practices of another agency and will
entail additional effort and expense to pursue. First, Protective Services
generally will not accept complaints alleging abuse of an educational
nature. This includes parental refusal of consent to evaluate. But, if
educational abuse/neglect is combined with any of the more traditional
types of abuse, Protective Services will accept the complaint. Second, if
the family is receiving any services from Community Mental Health, its
assistance might be sought. Third, similar to a truancy petition, a
district can file a petition with the probate court alleging abuse or
neglect under the probate code which generally would include educational
matters of this type.
The final option which we can now identify would be to hold an IEPC on
the student and write on the IEP that the student was found eligible and
required services as noted. Further, state that the parent refuses to
consent to such services and why. If appropriate under the circumstances,
then indicate that an attempt will be made to address the student's needs
through accommodations in general education under neither IDEA or Section
504, for a given period of time, say a semester or until the end of the
school year. Note that at that point in time, the IEP will be reconvened
to reassess the situation.
Sooner or later, unless the parents' mind set can be changed, the
district may be pressed to make the difficult decision of implementing one
of the other options noted above or continuing to honor the parents'
desire that services not be provided. In all candor, the risk of liability
on the district if it does nothing is probably remote although if the
circumstances were egregious and the real or potential harm to the child
substantial, an aggressive counsel on behalf of the student could probably
find the basis to bring an action. More than potential legal liability for
damages, the district's actions should be driven by what is truly in the
best interest of the student.
Note: Significantly, if the student in question has already been found to be eligible under IDEA and receiving services with the parent now wanting to terminate those services, the parent must request a hearing. If the parent does not, then the district is obligated to continue to provide services. Garcia v Town of Ridgefield Bd of Ed, EHLR 558:152 (USDC, 1986).
ANOTHER Q&A THIS MONTH
Q What should a district do generally when a parent requests driver
education training for a 16-year old student who has cognitive and/or
physical impairments which may mean driving a car is just not practically
feasible nor safe?
A While each situation will need to be considered individually, there
are two basic approaches which might be utilized to respond to the
request.
First, would be to consider driver's education as part of the student's
transition plan and evaluations in connection with the development of such
a plan. The evaluation should consider not only functionally how the
student would utilize driver's education, but in addition, given the
student's impairment and whatever accommodations and assistive technology
devices might be utilized does, or can, the student learn to drive a motor
vehicle safely. Based upon the evaluation of the relevant information, a
decision would then be made at an IEPC as to whether driver's education
was an appropriate related or transition service.
Second, the district might approach the request as not being for a
special education service, but rather to obtain a benefit offered by the
school district generally to all students. The issue then, basically under
Section 504, is whether with "reasonable accommodations" the
student can be given access to this activity on a basis equal to that of
students without disabilities. In order to make this determination, again
an evaluation such as that described above is necessary only here an
additional factor would be the cost of any required adaptations or
advices. Here, the "group of knowledgeable persons" composing
the 504 planning committee would decide the appropriateness of driver's
education for the student given the potential safety factor, and if
appropriate, the reasonableness of the accommodations given their cost.
IPPSE
2143 Commons Parkway
Okemos, MI 48864-3987
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