Ms. S. v. Vashon Island School District, 337 F.3d 1115 (9th Cir. 2003)

U.S. Court of Appeals for the Ninth Circuit

Diane Heveran Rothaar Kristina Mosley

Lovelle Suarez

Penny Wade

Tiffany Hutchings

Facts

• Ms. S is the mother of a daughter, G, who has Down’s syndrome, testing as “mildly mentally retarded” at ages 6 and 10.

• G was in the Seattle School District for kindergarten and 1st grade, before moving to Vashon Island School District.

• During kindergarten, in 1992-1993, G’s IEP included ½ day in general education classroom and ½ day in special education classroom.

• G was “successful in the special education classroom, but in the general education classroom was bossy, demanded frequent attention of teacher and peers, and had occasional outbursts.

• Seattle’s Director of Special Education stated she could not imagine placing G in a general education classroom.

• At Ms. S’s request, in April 1993, G was placed for full day in special education classroom

• Prior to G beginning 1st grade, Ms. S requested that G be placed in a general ed class. G’s IEP team agreed to instead assign her to an alternative school in an experimental multi-age classroom combining special ed and general ed students, staffed by a special ed teacher & aide.

•During 1st grade, in 1993-1994, G attended this alternative school program, where she received individually designed instruction largely prepared by a special ed teacher, and did not require a dedicated assistant.

•The placement was described as generally successful despite continuing difficulties with appropriate personal space, and her teacher indicated with proper support, G could be successful in a setting with normally developing peers.

•Ms. S and Seattle SD agreed that G would return to this placement for the 1994-1995 school year.

• G was not re-enrolled in Seattle School District in 1994-1995 for 2nd grade.

• In summer 1995, Ms. S inquired about enrolling G in a general 3rd grade classroom in Vashon Island School District, which had only 1 elementary school.

• After other exchanges, On September 18, 1995, Vashon Island SD sent Ms. S form for consent to place G for less than 30 days in self-contained special education classroom until assessment could determine appropriate placement.

• On the same date, Ms. S replied that this placement was inconsistent with G’s last IEP and demanded independent assessment before placement. Ms. S wanted G placed in general education classroom until assessment.

• The following day, Vashon Island SD sent Ms. S 2 letters: 1) denying request to transfer to the district on basis that it could not provide level of service Ms. S was seeking; and 2) stating that even if G had been enrolled as of September 5, she had since been withdrawn for lack of attendance, but she could re-enroll; and also informed her psychologist would again attempt to schedule an assessment.

– Vashon Island SD made several unsuccessful attempts to schedule meetings to evaluate G and to discuss IEP in late Sept., Oct., and Nov. VISD informed Ms. S that until G could be assessed, it would use her last IEP as a guide in developing a temporary IEP. VISD filed for a due process hearing to show proposed placement appropriate.

– At 1st IEP meeting, Nov., Ms. S pointed out IEP using was not most recent, and VISD altered proposal to more closely match 1993-1994 IEP, but without an alternative program. At 2nd full IEP meeting, Ms. S and VISD agreed on some changes, but not on placement. The revised draft IEP placed G in special ed class 5 hours/day and at least 1 hour/day in general ed (music, phys ed, tutoring…). Ms. S objected.

– Upon order of ALJ, in Jan. 1996, G was reassessed by VISD’s student services director, elementary school principal, school psychologist, speech and language pathologist, two general education teachers, a special ed teacher, a physical therapist, and an occupational therapist, several with experience with children with Down’s Syndrome.

• Finding: G was mildly mentally retarded, approximately 3 yrs behind peers in math, written & reading comprehension; at least 4 yrs behind peers in motor skills, visual perception, eye-hand coordination; and difficulties with impulsivity, attending to task, stress responses, dependence on adults, and interacting with same-age peers.

• Ms. S demanded independent evaluation.

• Ms. S declared intent to home-school for remainder of year.

• Administrative Hearing 95-75: ALJ approved VISD’s placement.

• Administrative Hearing 96-34: ALJ approved VISD’S reassessment.

• U.S. District Court (1999) affirmed administrative rulings, finding for VISD.

Issues

Substantive Issue

• Was the VISD proposed placement of G in a special education classroom, segregated from the general student population appropriate?

• Was it the Least Restrictive Environment?

Procedural Issues:

• Did the VISD violate the procedural requirements of the IDEA to have an IEP in place “at the beginning of the school year”?

• Did they provide the parent with the opportunity to participate meaningfully in the IEP process?

• Did the proposed placement under review for the pendency of Hearing 95-75 abide by the “stay-put provisions of the IDEA that “the child shall remain in the then current educational placement of such child”?

• Did the VISD violate procedural requirements by failing to provide prior written notice before proposing to “initiate or change” placement?

Holdings

District Court holdings affirmed.

Procedural Compliance:

1. IEP was in place at the “beginning of the school year”

– The Ninth Circuit determined that the new district may implement the last IEP or conduct a meeting to develop a new IEP within one week after child “enrolls” in new district

– According to the WAC, a student is “enrolled” if he or she “resides” in the school district

• Participated in instruction before date in question• Did not drop out or absent 20+ consecutive days of

instruction• Live in district majority of the time

2. VISD provided parent with opportunity to participate meaningfully in IEP process

– Parents are “afforded the opportunity to participate” if school district affords the parent to a subsequent due process hearing

3. VISD abided by “stay-put” provisions of IDEA

– When parent and new SD disagree about placement, SD satisfies IDEA by implementing last agreed-upon IEP BUT if not possible SD must adopt a plan that approximates old IEP as closely as possible until dispute resolved via due process.

4. VISD’s notice complied with procedural requirements of IDEA- no denial of FAPE

– Required presence of current general education teacher even if out of district

– Provisions do not allow parent to demand the SD bring a non-enumerated individual and vice versa

– Presence of home school teacher (Ms. S) sufficient because questionable whether G accepted as transfer student in August.

Substantive Compliance:

• VISD’s interim placement was substantively proper under IDEA and provided for mainstreaming to the extent appropriate.

– Child entitled to LRE as determined by Rachel H. factors (4-part test)

• Academic benefit• Non-academic benefit• Effect on other students and teachers• Cost

Legal Doctrine

• Ms. S alleges that the VISD violated IDEA by proposing a temporary individualized education placement, for G that placed G in a special education classroom, segregated from the general student population.

• The VISD argues that the temporary placement was appropriate until the VISD had the opportunity to assess and evaluate G’s needs and abilities more fully.

IDEA, 20 U.S.C §1400 (d) • Ensure that all children with disabilities have available to

them a free and appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living, to ensure that the rights of children with disabilities and parents of such children are protected, to assist states, localities, educational service agencies and Federal agencies to provide for the education of all children with disabilities.

Ms. S alleges four (4) procedural violations of the VISD:

1. Did the VISD violate the procedural requirements of the IDEA by failing to have an IEP in place “at the beginning of the school year” (34 C.F.R. §300.342…)?

Pg.10463-10464

The interpretive guidelines for the IDEA regulations issued by OSEP specify that “[i]f a child with a disability has been receiving special education in one [district] and moves to another community”, the new district may implement the last IEP from the old district; however, if the last IEP is unavailable or if the new district finds the old IEP inappropriate then the new district must conduct a meeting to develop a new IEP. (34 C.F.R. Pt. 300 app.C, no.6 (1995)) This meeting should normally take place within one week after the child enrolls in the new district.

The interpretive guidelines also state that “[i]f the [district] or the parents believe that additional information is necessary … or that a new evaluation is needed before a final placement decision is made, it would be permissible to temporarily place the child in an interim program”; to ensure that the temporary placement does not become a final placement, the district may develop an interim IEP with a “specific timeline” for completing the evaluation and making judgments about the most appropriate placement for the child.” (34 C.F.R. Pt. 300 app.C, nos. 5-6)

Wash.Admin.Code §§392-121-106(1)(a), -106 (4)-(5), -108(1)-(2)(1995) states that a student is “enrolled” if he/she “resides” in the school district, actually participated in a course of instruction on a school day during the current school term before the date in question, and neither dropped out nor was absent for more than twenty consecutive school days.

2. Did the VISD come to a unilateral conclusion on G’s placement before involving Ms.S or reviewing G’s records, and did they maintain insistence on a predetermined placement despite substantial parental protest?

– 34 C.F.R. §300.345 (1995) requires that the school district “take steps to ensure that one or both of the parents… are afforded the opportunity to participate” in IEP meetings, so long as it affords the parent a subsequent due process hearing with regard to its proposed plan when the parent and the school district are in disagreement about the aspects of the proposed plan…

3. Did the VISD fail to implement her last agreed-upon IEP during the pendency of Hearing 95-75?

20 U.S.C. §1415 (e)(3) “stay put provision”– The implementation of G’s last agreed-upon IEP

would have been impossible in the VISD (as there is only one elementary school, whose current infrastructure did not replicate SSD’s definition of an appropriate placement for G), and because the explicitly temporary and malleable nature of the placement that the VISD offered approximated the last agreed-upon IEP as closely as possible under the circumstances…

4. Did the VISD attempt to schedule the first meeting to”initiate or change” G’s placement on September 1st, without prior written notice?”

34 C.F.R. §300.504(a-b) et. seq.

Although there were minor procedural violations in providing notice to Ms.S in VISD’s notice for the October 31, 1995 meeting, no harm was done because the VISD’s notice for the November 9th meeting was in compliance with the procedural requirements of the IDEA. Not every procedural violation results in the denial of FAPE.

Ms. S also makes some substantive claims:

1. Did the VISD violate the substantive provisions of the IDEA by failing to place G, “to the maximum extent appropriate” in a general education environment with normally developing peers…”?

34 C.F.R. §300.550 (b)(1-2)• The court applied four (4) factors to determine whether a

student’s placement represents the LRE:1. the academic benefits of the placement in a mainstream

setting…2. the non-academic benefits of mainstream placement, such

as language and behavior models provided by non-disabled peers.3. negative effects student’s placement has on peers and

teachers4. cost of educating in the mainstream environment.

The court concluded as follows:

1. It was not clear that G’s academic progress would have been satisfactory with temporary placement in a general education classroom.

2. G would have benefited from mainstreaming given past placement histories.

3. Given past placement difficulties, to an extent, the interim placement was appropriate to mitigate possible negative events affecting peers and teachers.

4. Cost would not have prevented placement of G in a mainstream environment.

Significance

•School districts may place a student in the environment they deem most appropriate if there is not an up to date IEP for an interim period of 30 days with a temporary IEP and timeline for proper assessment and placement.

•When a child transfers school districts the new school district is not required to replicate the exact program a child transferred from as long as they modify the curriculum to meet the child’s IPE requirements.

•If a school district makes minor procedural violations but fixes them in a timely manner they are not in noncompliance with FAPE.