Category Archives: FAPE

Orange County special education attorney opposes AASA proposal

Posted on by

DueProcessLaw

As an Orange County special education attorney, California, I am writing here to explain my opposition to the School Superintendent’s Association’s (AASA) recently released policy proposal Rethinking Special Education Due Process (RSEDP). I have a number of concerns with this document which I would like to address. First though, let me give a brief overview of the document’s purpose and policy proposals.

IDEA is the major law governing special education

law in school. It currently is past due for reauthorization, but to borrow a line from another special education blogger, Jim Gerl, “Congress is too busy ignoring other important issues at this time.” Since it stands to reason that Congress will indeed decide at some point to address this important piece of legislation, AASA produced RSEDP for the purpose of influencing the conversation around what sort of changes should be included when that gets done.

In a nutshell (for a longer discussion of what RSEDP contains, read my article on 

Examiner.com), AASA is proposing a complete overhaul of the dispute resolution section of IDEA. Under its proposal, due process hearings (DPH) would be eliminated, mediation would no longer be binding, and parents would no longer be allowed to be represented by attorneys or advocates during mediation. In place of DPHs, AASA recommends two alternative procedures, facilitated IEPs and a “consultant IEP process.”

Facilitated IEP: A facilitated IEP would be used to resolve disputes before a formal due process complaint has been filed by bringing in an outside contracted “state-approved, trained IEP facilitator” who would be a “neutral, state-provided, trained facilitator.” The facilitator would attempt to help the district and parents reach agreement before legal paperwork is filed. Personally, I do not have any issue with the addition a facilitated IEP when an IEP between the district and the parent fails to reach agreement. Such a system can help solve problems before they become larger and more personal.

Consultant IEP Process: If a formal due process complaint has been filed and mediation failed or if one of the parties believed that mediation would be fruitless, the parties would be required to select “an independent, neutral special education consultant designated by the state to review evidence of the child’s disability and advise the parties on how to devise a suitable IEP.” The consultant would have 21 days to collect all the necessary information and design an IEP to be given to the parties. Both parties would agree to honor the IEP for an agreed upon period of time. If at the conclusion of that time period either party was dissatisfied with the consultant’s IEP, that party could litigate their claim in court.

As a special education attorney here in Orange County, Calfornia, following are some of the major objections I have to AASA’s proposal.

This is a Civil Rights Issue

The reason why IDEA was enacted over thirty years ago was to protect the civil rights of disabled students. AASA argues that these protection can now be watered down because of increased government oversight of special education programs due to mechanism within IDEA 2004 and No Child Left Behind (NCLB). I strongly disagree. Yes, these measures have increased oversight on the overall special education system. Under NCLB, districts are required to report on the overall academic achievement of their disabled students and schools and districts can face sanctions for not meeting nation-wide standards on these measures. It is also true that IDEA 2004 requires districts to report on numerous performance and compliance measures. Failure to comply with these rules can lead to a loss of significant federal dollars.

Yes, these things are true. However, these are macro measures not micro measures. They ensure the system is working as a whole; these laws do nothing to ensure that a district is meeting the needs of an individual child. It is not enough to say to a parent that district children are advancing, but sorry, the IEP for your child does not ensure a free and adequate public education. Each parent and child count, so to undermine the system supporting their right to challenge a district premised on the notion that the overall system as a whole now has greater accountability simply is insufficient. Civil rights are there for the individual. It is not enough to argue that we are meeting the needs for some percentage of individuals; the system is there to protect each individuals right to an education.

Unfairly Tilting the Balance of Power

After reading AASA’a RSEDP, I walked away with the strong suspicion that AASA was trying to place its thumb heavily upon the balance of power that currently exists between parents and districts. The proposal seeks to strip parents of the right to representation during mediation. While I know lawyer-bashing is an American past-time, lawyers and advocates serve an important role in special education mediation. Keep in mind what such a mediation would often look like. During mediation, a highly-trained district office administrator, many of whom who hold doctorate degrees in education or more specifically special education, would be facing a parent who is generally lacking in knowledge about education in general and also special education law. There is a gross mismatch in terms of understanding of the system and its rules and regulations. Such a situation literally invites district overreaching.

The AASA report states the use of attorneys has limited the effectiveness of mediation because their presence “complicates and compromises the outcome of mediation.” I was interested in following up on this quote and the context in which it was given but was unable to do so because the footnote is incorrect. It states the author of the quote is Mueller and states she is cited at 58. She is not. She is cited several times in the report, but the articles as cited are not accessible unless one is a subscriber to a service. That said, what attorneys provide is knowledge of their client’s rights. If advocating for their client “complicates and compromises the outcome of mediation,” then I would argue the suggested outcome was not a fair one for the parent or, more importantly, the child.

Given the above, it appears that AASA basic proposal is that its members should enter mediation with knowledge and authority while parents should not. They believe that when parents have knowledge of their rights through advocacy that it only complicates the process. Our disabled children deserve a better philosophical approach then AASA is offering here.

A Solution in Search of a Problem

A final issue of mine with the proposal is that it is a solution for a non-existent problem. While the proposal attempts to paint due process hearings as a major source of problems for school districts, the report’s statistics clearly show that DPHs are not. The statistics given here were collected by AASA for use in this proposal. 200 randomly selected school superintendents were surveyed about the impact of the due process hearing system on their respective districts. Of those 200 superintendents, 99 reported that their district had not been engaged in a single due process hearing during the last 5 years. 29 reported having one due process hearing in the last five years, 44 reported having between 2 and 5, 14 reported between 6 and 10, and 6 had 11 or more.

The reality is that when almost half the respondents do not report a single DPH and of the remainder, 3/4 had been involved in less than 5, this is not a significant issue. Also, keep in mind when reading these statistics that AASA did not ask whether the district had prevailed, lost, or had a mixed ruling of losing on some and winning on some of the issues. While it is true that districts prevail more than they lose, a large number of these DPH cases were cases where the parents prevailed because the district involved was not doing its job.

Based on this reasoning, districts are facing a very small number of cases in which the parents do not have a legitimate issue of contention with the district’s proposed IEP or implementation of an actual agreed upon IEP. Also, just because the district won (or the parent for that matter), does not mean that there was not a legitimate question that needed to be resolved. Thus, doing away with DPHs when there are so few of them across the nation is a solution for a problem that does not exist.

Conclusion:

I could go on with other arguments, (effect on the court system, the idea that stress on school personnel is a valid reason to lessen disabled children’s civil right, etc…) but the above should be sufficient to show that AASA’s proposal is flawed and should not be followed. Our disabled children need protection. One only needs look back to the system that existed prior to IDEA where only 20% of our disabled children were even being educated to know that IDEA and its protections serve an important purpose. IDEA is an important civil rights tools and should not be watered down based on the flawed reasoning displayed in RSDEP.

For another thoughtful criticism of this proposal by Mary Richard, a special education attorney, click here.

Gregory R. Branch is an Orange County attorney who practices in the area of special education. If you are having a dispute with your local school district, please call him at (714) 856-1166 or email him at gregorybranch@edrightsadvocate.com.

 

 

 

District not required to serve ADHD student attending private school

Posted on by

(January 16, 2013) A school district does not have an obligation to provide services to an ADHD child enrolled in a private religious school under current federal disability-rights law.

The United States Court of Appeals for the Fourth Circuit held that Baltimore City Public Schools had no obligation to provided special education services under Section 504 to an 8th grade ADHD student who attended a private Jewish school in Maryland.

D.L., the student around whom the law suit swirled, was diagnosed with ADHD and anxiety as a fifth grade student in 2007. Two years later, Baltimore City Board of School Commissioners (BCBSC) determined that while D.L. did not qualify for services under the Individuals with Disabilities Educational Act (IDEA), he was eligible under Section 504. Upon making this determination though, BCBSC notified D.L.’s parents that it could not provide the student services unless D.L. was enrolled in one of its schools. Since Maryland is a state that does not allow dual enrollment in a private and public school, D.L. would have to withdraw from his Yeshiva and enroll at the local public school.

D.L.’s parents challenged this decision, arguing that Section 504 creates an affirmative duty for school districts to provide services to eligible students enrolled in private schools. The parents’ arguments failed before a hearing officer so they filed suit in the United States District Court of Maryland. BCBSC filed a motion for summary judgment (a motion which basically says that even if D.L.’s parents were to prove all the facts they assert, they would still lose the case as a matter of law) and the parents filed a motion for partial summary judgment. The lower court granted BCBSC’s summary judgment motion and denied the parent’s partial summary judgment motion. The parents filed an appealed that decision to the U.S. Court of Appeals.

In the case, D.L. v. Baltimore City Board of School Commissioners, the parents argued two main points: 1) that Section 504 regulation mandate that BCBSC provide D.L. with a free and appropriate education (FAPE), and 2) that BCBSC’s requirement that the family enroll D.L. in a public school violates their constitutional rights under the First Amendment’s Freedom of Religion clause.

With regard to the first contention, the court recognized that the plain language of Section 504 leaves unclear whether public schools are required to provide services to students enrolled in private schools. 34 C.F.R. § 104.33(a) states in relevant part that districts must “provide each Section 504 eligible student within its jurisdiction with a [FAPE].” The parents contend this language means that public schools have a greater obligation that simply making such education available.

The court reasoned that while the plain language is ambiguous, that further clarification in Appendix A of the regulations where it states in relevant part, “[i]f . . . a recipient offers adequate services and if alternate placement is chosen by a student’s parent or guardian, the recipient need not assume the cost of the outside services.” In looking at this, the court noted that while this shows that a district need not pay for services obtained outside the public school, it leaves open the question of whether such services can be obtained from the school.

Here, the court relied upon a clarification letter by the Department of Education entitled OCR Response to Veir Inquire Re: Various Matters which offers a direct clarification of the disputed regulation. The court noted that where a regulation is ambiguous, courts must grant deference to an agency’s interpretation of its own regulation. In the Vier letter, the DOE stated that “[w]here a district has offered an appropriate education, a district is not responsible under Section 504, for the provision of educational services to students not enrolled in the public education program based on the personal choice of the parent or guardian.” The court applied this language to hold that BCBSC had no responsibility to provide services to D.L. in his private school placement.

In reaching its holding, the court also rejected the parents’ arguments that Section 504’s language should be interpreted broadly since it is a remedial statute. While noting that turth of the parent’s contention that remedial statutes should be broadly construed, the court noted,

“The purpose of Section 504 does not, however, extend as far as Appellants [parents] assert that it should. Section 504 and its implementing regulations prohibit discrimination on the basis of disability, not on the basis of school choice.”

The court next tackled the First Amendment issues raised by the suit. The parents’ suit tried to persuade the court that the Supreme Court’s rulings in Pierce, 268 U.S. 510, and Yoder, 406 U.S. 205, show that requiring D.L. to attend Baltimore public schools was a violation of his First Amendment rights.

The court easily distinguished these cases in that both involved parents being charged under criminal statutes for failure to educate their children in public schools. Here, the parents face no such sanctions and retain free choice as to where their child go to school. The issue was one of payment of services. While it is true that the parents would need to pay additional services that would be free were they to attend public schools, such increased economic burden does not meet the standard of a First Amendment violation. The court noted, “The Supreme Court has explained that a statute does not violate the Free Exercise Clause [First Amendment] merely because it causes economic disadvantage on individuals who choose to practice their religion in a specific manner.

 

 

OCR received its greatest yet number of disability complaints

Posted on by

The federal Office of Civil Rights (OCR) has just released a new report, Disability Rights Enforcement Highlights, and it reveals among other interesting findings that during the three year period from 2009-2011, OCR received its greatest yet number of disability complaints. From 2009-2011, OCR received over 11,700 disability complaints, which comprised 55% of the total overall complaints received. The other 45% of the claims received were related to other areas of OCR enforcement in areas such as national origin, race, age, and sex.

 

Disability Rights Enforcement Highlights

Based on the report, it is clear that the vast majority of disability complaints were in the area of FAPE, Free and Appropriate Public Education. FAPE questions concern whether a district has offered a special needs child an educational program from which the student can obtain at least some minimal benefit. If not, the student has been denied FAPE. Of the 11,700 disability complains, 4678 were devoted to FAPE questions, or roughly 40%. Other high complaint areas were exclusion, retaliation, and academic adjustment. During this three year span, the OCR launched 15 FAPE related investigations of its own.

Another important function that OCR noted it played over this same time span was protecting the educational rights of “wounded warriors.,” our nation’s soldiers who have returned home from battle with permanent injuries that qualify them for educational protection. OCR noted that often these former soldiers are not familiar with the educational protections provided for them under federal law.

Similarly, educational institutions are not uniformly prepared to serve an influx of veterans with combat-related disabilities such as Traumatic Brain Injury and Post-Traumatic Stress Disorder. OCR’s technical assistance has informed veterans, educators and service providers from institutions such as the Veterans Administration about how the protections afforded to post-secondary students with disabilities apply to those returning from war.

Here are examples of some of the investigations based on complaints received by OCR.

Academic Adjustment: An HIV positive student alleged that his college discriminated against him by dismissing him from its medical office technology program. One of the required classes for it mandated that the students draw blood from one another, and the school dropped the young man due to safety concerns. In order to resolve the complaint, the school agreed to re-enroll the student, consider the student’s request for the academic adjustment of not having other students draw his blood, and provide the college’s staff with training on the necessity of providing academic adjustments to disabled students.

FAPE: OCR facilitated Early Complaint Resolution where parents alleged that a school district had not faithfully implemented their child’s IEP (individualized educational program) who qualified for services due to a mood disorder. Based on these efforts, the district agreed to schedule an IEP to discuss the parent’s concerns and to provide notice to the teachers of the requirement that they implement the IEP.

Harassment: Parents filed a complaint based on harassment they alleged their student had received due to a disability related body odor issue. The child had been previously diagnosed due to Fragile X Syndrome, ADD, Asperger’s Syndrome, and Tourette’s Syndrome. The complaint alleged that based on the body odor issue, the student had been detained by school staff who made her take a shower prior to attending class, had staff spray air freshener on her in front of other students, and be sent home prior to the end of the day due to her body odor. After OCR facilitated Early Complaint Resolution, the school district agreed to train staff regarding the student’s disabilities, enroll the student in its Senior Life Skills course, offer weekly social work services, and assist the student in finding community employment.

4th Circuit case illustrates FAPE considerations

Posted on by

 A recent 4th Circuit case, Lexington County School District One v. Janet B. Frazier, shows the factors that a court looks at in determining whether a district has offered FAPE, a free and appropriate public education.  In the case, the court held that for one year, FAPE had not been offered based on the contents of the proposed IEP, but that in the following two school years, the district had offered FAPE when its proposed IEP contained new elements designed to meet the student’s unique needs.

Case Facts: D.K. is an Asperger’s Disorder identified child who suffered a number of difficult life changes during the 2006 school year. During this time, his father passed away, his mother, Janet Frazier,  remarried, and the family moved to anew city. Part of Asperger’s is difficulty in dealing with change.

Prior to the move, D.K. was already exhibiting resistance to attending school. In fact at one point court records show, he completely refused to go despite the best efforts of his mother. Because of this, the then home district made counseling services available to D.K., although the services showed little effect.

In the spring of 2007, the family moved toLexington,South Carolina. The district, Lexington County School District One, there proposed an IEP for D.K. that did not offer counseling nor include an attendance goal. Instead, the district focused on the academic setting with the hope that this would positively impact D.K.’s attendance. It did not. Once again, despite Frazier’s efforts and the academic program proposed by the district, D.K. continued to miss a large number of days due to refusal to attend.

After numerous IEPs where Frazier requested counseling services but was denied, she unilaterally moved D.K. to a private, residential school in Michigan, Montcalm School for Boys. In that setting, D.K. made progress. He did refuse to attend classes on three occasions, but afterward, the school’s counseling and intervention was successful in getting him to return to class. Part of the curriculum offered through Montcalm is on-going counseling, both individual and group.   During the year at school, D.K. progressed two years in reading and math.

Prior to the 2008 school year,LexingtonCountyagain had an IEP with Frazier. This time around though, the IEP proposal contained a provision for a psychologist to perform an evaluation of D.K. to determine if counseling was necessary. In addition, the IEP offered preferred activity time to help D.K. decompress and “virtual” classes, classes conducted through the internet. Despite this offering, Frazier elected to move her son to a new private facility located closer to their home.

Court’s ruling and logic: The court here held that for the 2007 school year, D.K. had not been offered FAPE, but that after that, due to the changes made to the proposed IEP, that he had. The effect of that ruling is thatLexingtonCounty must reimburse Frazier the cost of D.K.’s Montcalm tuition for 2007, but not tuition for his subsequent placement at the new private facility.

When a parent unilaterally, meaning without the district’s permission, places their child in a private educational facility, the parent can file with the court to require the district to pay. It is a gamble though, because if the parent is wrong, then she is on the hook for the cost. Parents may be reimbursed only if the program and institution where they place the child will provide an “educational benefit” and the student would not have received benefit under the proposed district IEP.

Here, the court determined that during the 2007 school year at Montcalm, the student did in fact receive benefit, as evidence by his academic progress and his regular attendance. While academic growth alone is not sufficient for such a determination to be made, the court can give weight to such a finding, which here it did. Under the standard above, D.K. receiving educational benefit is not sufficient though. Frazier was required to show thatLexingtonCounty’s proposed IEP would not benefit her son.

In support of its case,LexingtonCountyargued that the reason why D.K. would not attend school was unrelated to his disability but rather anxiety stemming from the many changes that had occurred in his life, from his father’s death to his relocation. The court rejected these arguments though, looking to the fact that these events had happened more than a year prior to the on-going attendance issues. The court further noted that there was…

“ample evidence in the record to suggest that the anxiety D.T. experienced in school, while it may have been exacerbated by life events , is a common symptom of Asperger’s and was a major cause of his unresponsiveness.”

Having ruled in Frazier’s favor for the 2007 school year, the court then turned its attention to Frazier’s claim that the district should also reimburse her for the subsequent school years, a claim the court rejected.

The court applied the same test to determine if the district should be responsible, but under this analysis, due to changes in the proposed IEP rejected Frazier’s claim. The court noted that in 2008, D.K. was not in the same position as he had been in 2007. His attendance had been normalized, he had made significant educational progress, and was showing reduced signs of anxiety.

Probably more importantly though, the district was no longer offering a proposed IEP that did not attempt to deal with the emotional issues that D.K. had evidenced. The district proposal now included stress relieving time built into D.K.’s schedule, virtual classes, and the opportunity for counseling should a need exist. Over Frazier’s arguments to the contrary, the court held that the IEP did not need to include counseling, only an opportunity to determine if it was necessary. With these elements in place, the district’s offer in 2008 and 2009 was an offer of FAPE, in that it was reasonably calculated to offer educational benefit.

This case does an excellent job of illustrating how a court will examine FAPE where a parent decides to place their child in a private setting without a district’s consent. In such cases, parents must meet a high threshold to obtain reimbursement. They must prove that the placement they chose provided an educational benefit to the child, usually the easier part, and second, that the district’s offer would not provide their child benefit.

Gregory Branch is an educator and educational attorney who practices inSouthern California. He can be reached at gregorybranch@edrightsadvocate.com.