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Presented by: Brooke R. Whitted - [email protected]
Neal E. Takiff – [email protected] Whitted, Cleary & Takiff, LLC
3000 Dundee Rd, Suite 303 Ph. 847-564-8665 Fax 847-564-8419 www.wct-law.com
August 8, 2007
1:30 p.m. – 4:30 p.m.
At the Cook County Juvenile Court 1100 South Hamilton Avenue
Chicago, IL 60612
The Cook County Public Guardian
Presents:
An Update on Special Education
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AGENDA SPECIAL EDUCATION I. Introduction
A. History of the Special Education System B. Current Structure of System II. Definitions: What is a Disability under IDEIA and the Illinois School Code?
A. Social maladjustment: A disability? B. What about conduct disorder? C. A note on prevalence of disability in juvenile/corrections populations III. Obligations of School Districts:
A. To actively seek out and serve disabled students (“Child Find”) 1. Affirmative duty, not passive
2. What to do when a school district declines eligibility (as for a suicidal child)
3. Use of experts in this area
B. To provide services appropriate to the unique needs of each student
1. The Rowley case a. What does this case stand for? b. What are the “Rowley Questions?”
2. The K.L. case and Rowley footnotes 3. Other decisional case law and a discussion of IEPs, the “blueprint” of the special education system 4. State learning standards and IEPs 5. The 2004 IDEIA Amendments C. To provide services in the Least Restrictive Environment (“LRE”) 1. The “Home School” 2. The Tatro case: Health services and LRE 3. The Beth B. case: “Maximum extent appropriate” 4. The Lindsey R. case: Enough is enough! 5. The “full continuum of alternative services” mandate: Still valid 6. The Light v. Parkway case: an extreme example
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D. To provide “related services” according to the needs of the student, i.e., any service necessary to enable a student to benefit from special education 1. What is a “related service?” Can these be “medical” or “health related” in nature? 2. The Tatro case (again!) and the 7th Circuit Max M. case 3. The Garret F. case: the U.S. Supreme Court settles the issue and gives parents more leverage in the process 4. Private schools 5. Illinois funding scheme 6. A note on “methodology” E. To ensure that students and their parents receive procedural protections 1. The due process system a. Characteristics and definitions b. The “stay-put” clause: Strong leverage c. The various steps in the hearing system d. The use of attorneys and advocates e. The 2004 attorney fee amendments f. The limitations statute: 2 years
g. Sample DP complaint (to be handed out)
h. “Not yet eligible” children: Do they have any rights? 2. Student discipline a. Regular education (Goss v. Lopez) b. Special education: The dual system 1. Honig v. Doe – exceptions! 2. 1997 and 2004 amendments 3. Manifestation determinations 4. The stay-put clause: How to use it for
Leverage in disciplinary cases
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IV. Other Issues A. Non-custodial parents B. Short-term minor guardianships for school purposes C. Healthcare POA Rider (to be handed out) D. Other forms E. School Student Records Act V. How to Advocate for a Special Education Child A. Top 5 tips for parents/advocates B. Preparing for IEP meetings C. Effective communication with child’s school
1. Letters (short!!!) 2. E-mails (they are forever and discoverable) 3. Phone calls 4. “Theatrical” strategies
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Table of Contents
1. COVER PAGE 1
2. AGENDA 2-4
3. TABLE OF CONTENTS 5-6
4. HOW TO DISMANTLE SPECIAL EDUCATION 7 5. HYPOTHETICALS 8-15 6. SPECIAL EDUCATION IN A NUTSHELL 16-20 7. COMMON MISTAKES 21-23 8. DEFINITIONS 24-28 9. SOCIALLY MALADJUSTED CHILDREN AND SPECIAL EDUCATION SERVICES 29-35 10. SUMMARY OF RESEARCH ARTICLES: PREVALENCE OF CHILDREN WITH DISABILITIES IN THE JUVENILE DELINQUENT/CORRECTIONS POPULATION 36-45
11. WHAT HAPPENS WHEN A SCHOOL DISTRICT FAILS TO
RESPOND TO THE NEEDS OF A SUICIDAL CHILD? 46-52 12. THE ROWLEY CASE: WHAT DOES IT REALLY MEAN? 53-63 13. THE K.L. CASE: IS ROWLEY STILL THE LAW OF THE LAND? 64-69 14. IEPs AND THE ATTENDANCE OF REGULAR EDUCATION
TEACHERS 70-76 15. 2004 IDEIA REAUTHORIZATION GRID 77-91 16. IS EDUCATION AT THE “HOME SCHOOL” A FEDERAL
MANDATE? 92-96 17. “FULL INCLUSION” – IS THIS A LEGAL TERM? 97-109 18. PROVIDING HEALTH RELATED SERVICES TO MEDICALLY
INVOLVED CHILDREN 110-126 19. THE FINAL WORD ON HEALTH SERVICES:
CEDAR RAPIDS v. GARRETT F. 127-130 20. SERVICES AT PRIVATE SCHOOLS: OBLIGATIONS OF
SCHOOL DISTRICTS 131-139 21. ILLINOIS FUNDING SCHEME 140-141
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22. METHODOLOGY 1. COCHLEAR IMPLANTS 2. AUTISM SPECTRUM 142-150
23. ATTORNEY FEES, EXPERT FEES, AND COSTS IN IDEA CASES 151-154 24. SUSPENSION, EXPULSION, AND DISCIPLINE 155-170 25. SUSPENSION/EXPULSION/DISCIPLINE FEDERAL REGS AND ILLINOIS STATUTE 171-175 26. NON-CUSTODIAL PARENTS: LEGAL ISSUES 176-184 27. SHORT-TERM MINOR GUARDIANSHIPS 185-186 28. FORMS 187-195 29. OBTAINING SPECIAL EDUCATION SERVICES FOR STUDENTS WITH EMOTIONAL DISTURBANCES 196-207 30. SCHOOL STUDENTS RECORDS ACT 208-214
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HOW TO DISMANTLE SPECIAL EDUCATION (1) Make the position of special education "teacher" disappear. Instead, responding to "market forces", offer only non-categorical training and certification, and make its graduates consultants, inclusion facilitators, IEP managers, managers of paper (with all sorts of titles), co-teachers (almost always subordinate to the "real" teacher), aides or assistants to "real" teachers, et. Make the job unappealing, make it have nothing to do with really specialized and intensive teaching, and then wonder why there is such a crisis and such a shortage. (2) Talk about a "unified system" or an IEP for EVERY child, or a seamless web of supports, or state that your goal is for EVERY child to be proficient on the State tests/EVERY student will attend college/EVERY student will pass a high school exit test. Then decry special education because ALL of the students it serves do not meet these goals. (3) Give all the money to local schools (or States) to spend as they choose. The current Hagel-Harkin "full funding" amendment to IDEA in ESEA (H.R. 1) allows 100% of new IDEA funds to be spent in any way a local school wants to spend it (spending not one dollar on especial education if it so chooses). Now the Governors have endorsed "full funding" but ONLy if the States get the same freedom to spend IDEA money at the State level that Hagel-Harkin offers local schools at the local level. What happened to spending IDES funds on students needing special education? Now the NEW, AASA (administrators), NASB (school borads), and CEC are running joint ads across the country asking, "Will Congress keep its promise?" What promis and to whom? The ad states "Guaranteed full funding for special education", but Hagel-Harkin has absolutely nothing to do with guaranteed full funding for special education. (4) Deny disability exists. As Hallahan & Mercer state, "disability as a social construction that is based on incorrect and immoral assumption about differences." (5) Actively ignore our history. As has been pointed out, no one advances by pointing to historical fact, but instead by advocating the NEW mill3enium, the current change, and the fashionable bandwagon. (6) Have those of us who have the most knowledge, and positions of potential influence, do little or nothing because of fear of reprisal, or of the political process, or of disfavor from colleagues or of grant givers. What is dismantled eventually is rebuilt if it is needed, but many students and teachers will lose out in the meantime. _______________________________________________________ Beverly E. Johns P.O. Box 340, Jacksonville, IL 62651 Phone: 217/245-7174 x233 (Office), 217/245-5781 (Home) Fax: 217/243-7596, Email: [email protected]
Whitted, Cleary & Takiff, LLC 3000 W. Dundee Road, Suite 303
Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 Fax
Website: www.wct-law.com
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Hypotheticals
1. Zelda 2. Jim
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OPG CASE SCENARIO
Zelda Wapsapitopitoe is a 13 year-old DCFS ward whose mother abandoned her on the streets of Bangkok, Thailand right after Zelda was born. She has never known a consistent home environment and the identity of the parents and their medical histories are unknown. A Lake Forest family first adopted Zelda, but within the first few years, she proved too much to handle and parental rights were surrendered to DCFS. Since the surrender, Zelda has been in multiple foster homes and has been variously diagnosed with reactive attachment disorder; ADD/HD; intermittent explosive disorder; oppositional defiant disorder; Dysthymia; and schizoaffective disorder. She is, on occasion, promiscuous when it serves her purposes, as her full scale IQ is 130 with a verbal score of 144 and a performance score of 101. She has outstanding skills in math, music and theater. Zelda is also active with the Juvenile Court on the delinquency side, having committed an act of battery against a Chicago Public Schools police counselor. Sh has also accused the same person of sexual impropriety. For this reason, as well as a repetitive set of other behavioral incidents, the staff at the Ray School in Hyde Park are not very fond of Zelda and have been pestering the juvenile probation officer to take her into custody or residentially place her elsewhere, at least anywhere but at their school. The Chicago Public Schools for some reason completely failed to classify this girl into the special education system. In fact, she seems to have fallen through the cracks, as she has not even been declared eligible for a Section 504 accommodation. Every time a DCFS worker or probation officer or representative from the public guardian’s office has pointed out that she could be eligible for special education, CPS representatives say that she is a child welfare case; that she is a corrections problem; and, that any placement that she might require would not be for “educational” reasons anyway, as she is “too smart to be eligible for special education” or in the alternative, she’s merely “socially maladjusted.” As a representative of the Office of the Cook County Public Guardian, you have attempted to repeatedly to get DCFS to advocate for the educational rights of this ward. You were astonished and appalled to learn that the DCFS educational advocacy division has manifested efforts, which could be described as lethargic at best. As an assistant public guardian, you have decided that something must be done. Your first step, in any “undeclared” case, is to request a case study evaluation. 1. How would you go about doing so? What if the DCFS guardian is uncooperative? 2. What leverage do you have, i.e., does this child enjoy special education rights even though she is not identified as a special education student?
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3. What is your time frame? 4. If CPS drags its feet, what are your options for motivating them? 5. What should you be doing while awaiting the results of the case study evaluation? While awaiting the results of the case study evaluation, you have decided to retain the services of Dr. Phinneaus Bleetwig, a well respected child and adolescent psychiatrist, who is always appearing on the television where he is requested to render opinions on topics both within and outside his areas of expertise, has a great media presence, and further has expressed an interest in working pro bono with children served by OPG. You also have the opportunity of having him come to the detention center, since Zelda has recently been held in custody for another battery and is pending a V.O.P. petition. Dr. Bleetwig interviews Zelda and, based on this and his review of the files, determines that she has an extremely severe learning disability that should have been attended to by the school district from her very earliest elementary years but has been largely ignored. Dr. Bleetwig is outraged that (a) CPS has done nothing her all these years and, (b) DCFS has not offer any kind of assistance either. 1. In looking at the facts so far, are you surprised at this determination?
2. What information, if any, is in the file that you have that would reveal the presence of LD to you instantly?
3. What do you do, in working with Dr. Bleetwig, to ensure that his report (for submission to the school district) is properly worded? 4. What is the number one finding that Dr. Bleetwig needs to have in his report for the local school district? 5. What other clinical personnel might be appropriate to assist in your preparation for an upcoming meeting with CPS to determine whether Zelda is eligible for special education?
6. Are there other avenues available for residential funding for Zelda, and if so, (a) which ones, and (b) how should Dr. Bleetwig’s report be modified for them?
Zelda has now been discharged from detention and has returned to the Ray School. In eighth grade, she has trouble getting along with both teachers and students and, due to her high verbal skills, isn’t very patient with people who can’t follow along with what she is saying. In fact, she becomes abusive and occasionally assaultive. You have recently received a notification form that Zelda has been suspended for the next 10 school days and that she will be scheduled for expulsion by the board, due to an assault to
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a fellow student. As she is not yet declared eligible for special education services, what do you do? 1. What is your best leverage at this point? 2. How can you use the Juvenile Court to assist you and increase your leverage? 3. What is the rule on children who are not yet identified as special education students? 4. What is the best way to obtain a private sector placement, possibly residential, for Zelda at this point? You have done everything you can to convince the Chicago Public Schools that Zelda is eligible for special education services. Yet at a recent meeting, they said she was a conduct disorder; that the reasons for residential placement were “noneducational” and were more “correctional” in nature; and that the best they could do was place Zelda in a nonpublic therapeutic day school; that a residential placement would cost too much anyway; that DCFS or the Juvenile Court should pay for it; and that they don’t do residential placements in any event because they are “too restrictive.” You respond with a request for a due process hearing. 1. What do you put in your hearing request? 2.. What happens after Arne Duncan receives your request? 3. What’s the best way to prepare for the hearing? 4. Do you agree to nonbinding mediation? 5. What about a “resolution session?” 6. Is discovery available? 7. Do the rules of evidence apply? 8. If you win, are attorney fees recoverable? Experts costs? 9. Who pays for the transcript? 10. What are the options and timelines if you lose? After ten days of hearing, you lost on all counts. You still belive your case is a good one, because the hearing officer (a) ignored all of your arguments; (b) engaged in ex parte conversations with opposing counsel; (c) was always sarcastic with you durin gthe
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hearing but acted like she had a crush on opposing counsel; (d) never sustained any of your directions but sustained all of apposing counsel’s objections; (e) lost her working file and blamed you for it; (f) ignored large amounts of evidence that you submitted. 1. What is your appeal timeline? 2. Where do you file? 3. What is your litigation strategy?
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SUSPENSION – EXPULSION HYPOTHETICAL
Jim is a 17 year old high school student who, according to the staff of Zero Tolerance High School (hereafter “ZTHS”), has become increasingly dangerous, unpredictable, and uncontrollable over the past several months. Jim is very tall and muscular and is active on the ZTHS wrestling team. He is diagnosed with ADHD, asthma, allergies, and a heart arrhythmia and has received special education services since 4th grade. Jim first enrolled in ZTHS at the start of the 2000-2001 academic year after being home schooled for grades 7 and 8 due to his prior experience – according to the mother – of “conflict and frustration in public education.” The parents complied with all home schooling requirements during grades 7 and 8 and assert there were never any behavior problems during that time. In August 2000, ZTHS convened a meeting for the purpose of developing an IEP for Jim, which, when finalized, provided 1075 minutes of special education instruction per week, as well as counseling services. Jim’s eligibility category under IDEA was Other Health Impaired (“OHI”), based on the previously described set of medical conditions. In the case study materials it was noted that Jim has “problems with anger management” but no Functional Behavioral Analysis or Behavior Intervention Plan was developed because this was Jim’s first contact with the public education system in two years, and the parents did not indicate the presence of any behavioral problems. On September 28, 2000 in a speech class, Jim said, “I feel like I want to kill someone” and “Will I get suspended if I fight someone in the halls?” Pursuant to policy, ZTHS suspended Jim for 5 days and convened a Threat Assessment Team (hereafter “TAT”) to consider whether these remarks might lead to a reasonable conclusion that Jim could pose a threat to himself or others. It was determined that Jim should be referred for a psychological evaluation. In preparation, teachers were asked to fill out brief survey forms on Jim, and most of them remarked that while Jim could become angry and frustrated, they had no behavioral concerns at this time. The school psychologist’s evaluation stated that Jim “harbors much anger, feels quite anxious, and has poor self esteem.” However, the psychologist concluded Jim had adequate impulse control and recommended that he return to school, with counseling as appropriate. On October 4, 2000 Jim emptied a hole punch onto the floor of a classroom and, after being asked twice to clean it up, he said he would do it “when he was ready.” The exchange continued between Jim and the teacher until, according to ZTHS staff, it “became disruptive,” whereupon Jim gathered his belongings and walked out of the class. As he was leaving the room, he threw one of the books he was carrying against the wall hard enough to make a loud sound. Jim was assigned to ASD (after school discipline) for insubordination for two days during October. On November 8, 2000 Jim failed to attend school and was picked up by local police in the company of another student. Jim’s companion was detained for possession of marijuana and Jim was returned to school at about 11:30am. For this incident, Jim received ASD on November 14th and 15th.
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DISCIPLINE HYPOTHETICAL PAGE 2
In November, Jim also received his 3-year reevaluation. The social worker commented in her report that Jim “can anger easily if he feels he is being treated unfairly” and further, that he “needs to improve his ability to respond appropriately to figures of authority.” Jim was, in the updated case study, found to be functioning within the average range of intelligence, and further that he “hates everything about” school – even though many of his teachers expressed a very positive perception of Jim’s in-class behaviors and attitude. Services in the IEP were left unchanged. On December 1, 2000 Jim said to a female teacher’s assistant: “High school sucks, The only way high school wouldn’t suck is if I could get laid.” The TA found this comment from a 17year old boy offensive and reported it, and Jim received ASD on December 5th and 6th for vulgar language. On February 28, 2001 Jim was seated at his usual table in front of the ZTHS lunchroom. He had apparently overheard a comment by the dean of students that he was considered to be a dangerous student. There were about 180 students in the lunchroom at the time. Jim rose from his table and went to a table in the middle of the room, stepped on the top of the table, and yelled for quiet. The lunchroom fell silent. Jim shouted that he wanted to see the dean of students – he became very agitated, swearing, and repeatedly stating he want to see the dean, NOW, at the table on which he was standing. He also yelled that the dean was “a liar” and was spreading rumors that Jim “had a gun.” One teacher, a female, who had a good relationship with Jim, went to the table and extended her hand, asking him to step down. Jim yelled, “Don’t f___in’ touch me” and remained on top of the table. The students in the lunchroom began cheering for Jim, but he pointed a finger at them and yelled, “And YOU…….” whereupon they fell silent. Then Jim said: “Where’s the Dean? F____ him. He’s saying I’m going to shoot up the school. Get him! I ain’t gonna shoot anyone! F____ him!” The dean then arrived, asked Jim to get down from the table, to which request he complied quietly, and Jim and the dean left the room together. Jim was suspended for two days, during which time a TAT was convened, which concluded that this incident was a “more serious threat” than the October incident and recommended an IEP meeting to consider whether Jim’s current placement was appropriate. After serving his 2-day suspension, Jim was “administratively excused” from classes for three more days so the IEP meeting could be scheduled for March 12th.
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DISCIPLINE HYPOTHETICAL PAGE 3 On Monday, March 12th, the IEP team – after hearing from everyone including
Jim and his parents, recommended that Jim needed a more intensively supervised setting. This might include one of three alternatives, all of which were opposed by the parents and (more vocally and angrily) by Jim. Parents felt that in light of the small amount of time remaining in the sch ool year, Jim should return to school, as they were certain he would not repeat his misbehavior. The IEP team said sorry, he could NOT return to his prior placement and one of the three other alternatives (only one of which was on school grounds – but self contained) must be chosen. Parents said they needed time to think and the team said they should take their time & get back to the IEP coordinator when they had made a decision. No mention was made about what Jim should do for the rest of the week. The family went home and began searching for a lawyer, with whom they met on Friday, April 6th. The attorney immediately drafted a Due Process Request which parents delivered to the Superintendent on the same day. At this point, Jim had been out of school for a total of 29 days cumulatively for the school year. Seven of these were official suspension days. Three of these were “administratively excused.” The rest of the days missed had no designation – and ZTHS contends these were missed at the choice of the parents. QUESTIONS
1. What, if anything, happens on Monday? 2. How is Jim’s behavior, in your opinion, to be categorized? Is he
truly likely to cause harm to himself or others? 3. Describe the requirements for an “administratively excused”
absence for a disabled student? 4. Has ZTHS met all of the IDEA procedural requirements? What
are these? 5. Can Jim be unilaterally removed by the school? If not, how can
the school get him out of their building? Are they justified in wanting him out?
THIS FACT PATTERN FORMULATED BY:
BROOKE R. WHITTED WHITTED, CLEARY + TAKIFF, LLC 3000 DUNDEE ROAD, SUITE 303
NORTHBROOK, IL 60062 847-564-8662
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SPECIAL EDUCATION IN A
NUTSHELL:
A BRIEF GUIDE TO THE PROCESS AND PROCEDURES
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I. Referral for Initial Case Study Evaluation (“CSE”) Made A. A referral for a Case Study Evaluation may be made for any child
suspected of having a disability. Every school district must develop and publicize procedures by which an evaluation may be made (“child find” procedures”)
B. Referrals may be made by “any concerned person”, however, referrals are
typically made by school district personnel, parents, other persons having primary care and custody of the child, other professional persons having knowledge of the child's problems, the Illinois State Board of Education ("ISBE"), and even the child them self.
C. Parent is defined as a natural, adoptive, or foster parent; A guardian (but
not the State if the child is a ward of the State.); An individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives), or an individual who is legally responsible for the child’s welfare; or an individual assigned by the State Board of Education as a “surrogate” parent.
D. Parental safeguards notification should always be provided to parents
upon initial referral. II. District Decides Whether to Conduct CSE A. The school district must decide whether or not to conduct the CSE. They
may use screening data and conduct preliminary procedures to assist in making this determination. If they decide not to conduct a CSE, the district must notify the parents, in writing, and explain their reasoning. A parent may request a due process hearing to contest the district’s refusal to conduct the CSE.
B. Parental consent for initial CSE required prior to CSE. The date
consent is obtained starts the 60 day timeline in Illinois. The district may seek a due process hearing to override a parent’s lack of consent. The new federal statute reauthorizing the IDEA has changed this timeline from a previous 60 school days in Illinois to 60 calendar days. It appears that Illinois is likely to adopt the 60 calendar day timeline, therefore most Districts are already applying it, even though Illinois regulations have not been finalized.
C. "Consent" is defined to acknowledge that parents can revoke consent, but
such revocation is not retroactive. Revocation of consent can be done either verbally or in writing. If done verbally, the district must confirm the request in writing by letter to the parents within five days.
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D. If a child is a ward of the State and is not residing with the child’s parent, the school district shall make “reasonable efforts” to obtain the informed consent from the parent of the child for an initial evaluation. However, the district is not required to obtain consent from the parent if the district cannot discover the parent’s whereabouts, following “reasonable efforts,” the parent’s rights have been terminated or “the parental right to make educational decisions has been subrogated by a judge and given to an individual appointed by the judge to represent the child.”
III. CSE Conducted and Conference Held To Determine Eligibility A. The 2000 IEP Regulations state that the “IEP Team” determines both
which relevant “domains” must be evaluated and the actual assessments to be utilized. Existing data must be considered. All IEP meeting must be scheduled at a mutually convenient time for both the school and the parents.
B. The CSE and CSE review conference to determine eligibility must be
completed within 60 days from the date of referral. C. The "date of referral" in order to start the 60-day timeline is the date on
which the parent(s) sign consent for the CSE. D. According to current Illinois regulations, when a student is referred for an
evaluation with less than 60 days left in the school year, eligibility must be determined and, if necessary, an IEP developed prior to the first day of the next school year. This requirement may be deleted when the new Illinois regulations are implemented.
E. Parent shall be provided with a copy of the team’s report at the conclusion
of the IEP meeting. A separate written statement may be provided by a team participant who wishes to be on record as disagreeing with the conclusions of the team. Within 10 days of the conference, parents shall receive written notice from the district as to the eligibility determination reached for the child.
IV. Initial Special Education Eligibility Determined
A. Eligibility is based on the federal and state definitions of a disability and is determined by a majority of team members. The existence of a DSM disability will not necessarily mean the child has a special education disability, unless the disability impacts the child’s education.
V. Initial IEP Developed by IEP Team
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A. If the child is eligible for special education service under a disability category, then an IEP is drafted. The IDEA requires that specific individuals be present at the IEP team including the parent, a regular education teacher, a special education teacher an individual from the school district capable of making decisions and committing district resources.
B. An IEP must be developed within 30 days of the eligibility determination.
VI. Initial Special Education Placement Decision Made
A. Placement decision must be based on measurable IEP goals. The 2004 IDEA reauthorization no longer requires districts to draft objectives with goals, except for severe/profound students. District may choose to draft objectives with goals. Districts should use caution if deciding not to use objectives, as goals must still be measurable.
B. Parental consent for initial placement must be obtained by the school
district prior to placement. According to the new IDEA reauthorized statute, School Districts may not file for a due process hearing to override a parents’ lack of consent for an initial special education placement. Note: the current Illinois consent rules promulgated in 2003 are unclear whether a District may file for a due process hearing if a parent did provide consent for an initial placement and then revoked consent.
C. The school district must wait 10 days before placement may occur,
although parents may waive this waiting period. In no case should placement occur later than the beginning of the next school semester.
VII. Annual Review of IEP A. A review of the IEP must be held at least annually. B. 10-day parental notification required for all IEP meetings, or a record of
reasonable attempts to notify parent required by the district prior to any IEP meeting. Parents may waive 10-day notice.
C. A parent may request an IEP meeting at anytime (within reason) if
desired. The district has 10 days after receipt of such a request to either agree to convene the meeting or notify the parents in writing of its refusal.
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VIII. Three-Year Reevaluation A. A reevaluation of the student may be conducted at anytime, but must be
conducted at least every three years.
B. Parental consent for all reevaluations must be obtained. C. The IEP team is now authorized to review the child’s existing record in
order to determine whether any new evaluations are unnecessary or whether the team may rely on existing data.
D. The domain determinations completed for initial evaluations must also be
conducted for reevaluations. E. The new IDEA and regulations clarify that reevaluations shall not occur more
than once per year, unless the parties agree otherwise. IX. Transfer Students A. Same state: A transfer student enrolling in a school district with an IEP
must be enrolled immediately. The new district must provide services comparable to those in the existing IEP, in consultation with the parents, until the new district adopts the existing IEP, or develops and adopts a new IEP. Presumably, the new IEP should be based on the student’s previous needs and evaluations.
B. Out-of-state: As with in-sate transfers, transfer student enrolling in a school
district with an out-of-state IEP must be enrolled immediately. The new district must provide services comparable to those in the existing IEP, in consultation with the parents, unless the new district conducts its own evaluation of the student and develops a new IEP.
X. Miscellaneous A. The IDEA requires prior written notice to parents whenever a district
proposes to change, or refuses to change, a child’s evaluation, identification, placement or the provision of the free and appropriate public education (“FAPE”) program.
B. Parents are entitled to request a due process hearing whenever they have a
complaint regarding the evaluation, identification, placement, or the provision of FAPE of the child.
C. The new IDEA establishes a two-year statute of limitations for filing a due
process hearing following the date the parent or district knew or should have known of a violation.
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Common mistakes can lead to court
Brooke R. Whitted is a partner with the Chicago law firm of Whitted & Cleary LLC. He represents a number of child welfare agencies and professional associations as well as private schools, schools for disabled chil-dren and several public school dis-tricts in the area of special education.
School districts as well as parents often
make common mistakes that result in
formal hearings or court cases that could
be avoided. These repetitive issues that
arise when disputes between parents and
school districts reach official levels
could be avoided by following some
practical advice.
to vent and to conclude that you are
sympathetic and able to lend a sup-
portive ear.
Common mistake #1:
Failure to make sufficient
use of interpersonal
skills
In about half of the cases, disputes
are really personality conflicts, resulting
when interaction between school staff
and a parent becomes so strained that
there is no room for compromise. School
staff in the field are the best equipped to
identify "high maintenance/high risk"
families: those whose sufficient anguish
may lead to anger and frustration
directed squarely at school district
personnel. Just as with disabled children,
disabled families need a special
approach. Listening goes a long way.
Not listening and power struggles cause
disputes.
This is the easiest category of
mistakes to avoid. When listening to
parents, give them the opportunity
Common mistake #2:
Not following through
The most frequent complaint to
parent legal representatives is that the
school district has not been com-
municating and/or has not done what it
said what it was going to do. Nine times
out of 10, when a school district has
failed to follow through, the parents also
voice frustration with an almost
immediate defensive denial on the part
of the administrator involved: "That's not
what I meant to say" or " I never said
that!"
These parents are often met with an
unequivocal denial that the commitment
was ever made or that a service was ever
promised, rather than an apology and a
quick, direct correction of the mistake.
This infuriates already frustrated parents,
who admittedly are under pressure (and
often angry) by the time they get to the
office of an attorney. Better to face up to
an error (if there was one) and move on
than to deny the error ever occurred,
incurring the hostility and wrath of the
parents.
Common mistake #3:
Categorical treatment
manifested as "zero tolerance"
Often, parents appear in the
lawyer's office and say they approached
an educator for a service and were told,
"We don't do that." Or, "Children with
your child's disability all go to the XYZ
Program." Or, "It's my way or the
highway."
Categorical treatment, within which
zero tolerance falls as a subset, is a
sure-fire way to drive parents insane. A
better idea is what federal and state laws
say a school district must do: treat each
situation on a case-by-case,
individualized basis. This way,
parental confidence in the ability of the
school district to meet the individual and
unique needs of their children will be
raised, and a greater rapport will be
established between district and parents.
Moreover, any educator should
recognize that, with young children at
the early elementary level, they are
likely to be compelled to work with
these families for at least another six or
seven years. To start off the relationship
in a hostile fashion only allows it to
fester through the years, building
hostility rather than happiness.
22
With good interpersonal skills,
however, staff can turn potential parental
enemies into some of the district's top
supporters.
Common mistake #4: Refusal to provide
a mandated
service
The courts become quite upset with
school districts that blatantly refuse to
provide a service the law clearly
mandates. Not only does this cause
disputes, but it risks incurring personal
liability against school board members
and administrators for not providing the
clearly mandated service. Many
examples in decisional case law exist in
which personal liability has been
imposed for this reason.
Common mistake #5:
Graphic procedural violations
Often, parents will appear in the
attorney's office and say, "The school
district completed their case study in 61
school days. Can I sue them?" The
answer is usually no, because a
procedural violation, to be actionable,
must be serious.
A delay of a few days is human, not
serious. A delay of a year or two is
serious and actionable. A delay of
months - or years - without explanation
or even a simple phone call to the
parents is likely to be serious.
If a school district knows it has
incurred such a procedural violation, the
best policy is to communicate with the
parents immediately and offer a truthful
explanation as to why there has been a
delay. This way, school districts can be
as transparent as possible and the parents
can continue to have confidence terms and avoid $10 words or vague
that communications are open and acronyms. Offer further explanation
honest. To say nothing fosters when parents seem confused. Avoid
suspicion. Suspicion fosters officious behavior.
lawsuits.
Often, parents will appear in the attorney's office and say, "The school district completed their case study in 61 school days. Can I sue them" The answer is usually no, because a procedural violation, to be actionable, must be serious. A delay of a few days is human, not serious. A delay of a year or two is serious and actionable. A delay of months -or years - without explanation or even a simple phone call to the parents is likely to be serious.
Common mistake #6:
Secretive behavior
Secretive behavior includes refusals
to be open with parents about what is
going on in their child's program.
Restrictive visitation/observation rules,
resisting discussions of methodology
and/or doctrinaire adherence to a
particular methodology are all good
examples.
In a classic example, the parent of a
cochlear implant child might think oral
education is better. The district restricts
visitation of the proposed program by
the parent so she won't see the extent to
which ASL is really being used. This is
deceptive and fosters suspicion. And, as
mentioned, suspicion fosters disputes.
Likewise, use of fuzzy bureaucratic
terms or acronyms that parents can't
understand falls within the
"secretiveness" category. If parents don't
understand what is going on, they will
become suspicious. Rule of thumb:
communicate in simple, understandable JULY - AI'GUST 2001 / THE ILLINOIS SCHOOL BOARD JOURNAL
Sometimes parents can make mistakes
as well.
Common parental mistake #1:
Desire to fight for
the sake of fighting Often, parents are so angry and
frustrated over a child's difficulties that
they want to displace their anger
squarely on the district, sometimes for
no apparent reason. Often, even after an
attorney obtains everything the parents
are seeking without a hearing (and this is
the attorney's duty if at all possible),
parents then become angry that they
have not had their "day in court," or that
they have to pay attorney fees.
These families will want to fight
regardless of what you do. Nothing will
please them. At some point, it is nec-
essary to draw the line, grit your teeth
and conclude that the family will never
be happy, even when the educators'
efforts to satisfy the needs of the child
23
BROOKE R. WHITTED
WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road
Suite 303 Northbrook, IL 60062 Phone: 847-564-8662
Fax: 847-564-8419 Website: www.wct-law.com
Email: [email protected]
can be described as Herculean, as was done by a judge in one case.
Common parental mistake #2: Greed
Sometimes, school districts enter into an amicable settlement, either orally or in writing, for a reasonable retroactive reimbursement. However, on the day the agreement is supposed to be finalized, the parents ask for more! From a school district perspective, this should not be tolerated in very many cases.
miscalculation, hold to the deal you've made.
Common parental mistake #3:
Not listening, or taking
everything as a promise
Sometimes events are visualized by members of a family under severe stress - or with a multitude of bor-derline personality disorders - which never occurred. These families also tend to thrive on conflict, so it is of no use to engage in confrontations.
The best approach is to pin down every communication with written correspondence (return receipt) to clarify the communication and ensure that all communication is accurate and, of course, truthful. A firmer
If everyone has bargained in good faith, there is no reason to reverse positions just because of greed. Without some very compelling reasons, or a significant
approach with families that manifest this kind of dysfunction will usually engender respect, although there can be times when such a plan might backfire. Use your judgment!
24
BROOKE R. WHITTED WHITTED, CLEARY & TAKIFF LLC
3000 Dundee Road Suite 303
Northbrook, IL 60062 Phone: 847-564-8662
Fax: 847-564-8419 Website: www.wct-law.com
Email: [email protected]
DEFINITIONS
25
WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road-Suite # 303 Chicago, Illinois 60062 Phone: (847) 563-8662 Fax: (847) 564-8419 Website: www.wct-law.com
SPECIAL EDUCATION:
ELIGIBILITY AND
DEFINITIONS
26
SPECIAL EDUCATION: ELIGIBILITY AND DEFINITIONS
23 ILLINOIS ADMINISTRATIVE CODE CH. I, S.226.75 SUBTITLE A SUBCHAPTER f
Disability: Any of the following specific conditions: Autism: A developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. (A child who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the other criteria of this Section are satisfied.) Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance. Deaf-Blindness: Concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness. Deafness: A hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child’s educational performance. Domain: An aspect of a child’s functioning or performance that must be considered in the course of designing an evaluation. The domains are health, vision, hearing, social and emotional status, general intelligence, academic performance, communication status, and motor abilities. Eligible: Identified in accordance with this Part as having any of the disabilities defined in this Section and needing special education and related services. Emotional Disturbance: (includes schizophrenia, but does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance): A condition exhibiting one or more of the following characteristics over an extended period of time and to a marked degree that adversely affects a child’s educational performance1:
1
Educational Performance: A student’s academic achievement and ability to establish and maintain social relationships and to experience a sound emotional development in the school environment.
27
An inability to learn that cannot be explained by intellectual, sensory, or health factors; An inability to build or maintain satisfactory
interpersonal relationships with peers and teachers; Inappropriate types of behavior or feelings under
normal circumstances; A general pervasive mood of anxiety or unhappiness or
depression; or A tendency to develop physical symptoms or fears
associated with personal or school problems. Hearing Impairment: An impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but that is not included under the definition of deafness.
Mental Retardation: Significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child’s educational performance. Multiple Disabilities: Concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments (does not include deaf-blindness). Orthopedic Impairment: A severe orthopedic impairment that adversely affects a child’s educational performance; includes impairments caused by congenital anomaly (e.g., clubfoot, absence of some member, etc.), impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures). Other Health Impairment: Limited strength, vitality or alertness, including a heightened sensitivity to environmental stimuli, that results in limited alertness with respect to the educational environment, that:
is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and adversely affects a child’s educational performance.
28
Specific Learning Disability: A DISORDER IN ONE OR MORE OF THE BASIC PSYCHOLOGICAL PROCESSES INVOLVED IN UNDERSTANDING OR IN USING LANGUAGE, SPOKEN OR WRITTEN, THAT MAY MANIFEST ITSELF IN AN IMPERFECT ABILITY TO LISTEN, THINK, SPEAK, READ, WRITE, SPELL, OR DO MATHEMATICAL CALCULATIONS, INCLUDING SUCH CONDITIONS AS PERCEPTUAL DISABILITIES, BRAIN INJURY, MINIMAL BRAIN DYSFUNCTION, DYSLEXIA, AND DEVELOPMENTAL APHASIA. (THE TERM DOES NOT INCLUDE LEARNING PROBLEMS THAT ARE PRIMARILY THE RESULT OF VISUAL, HEARING, OR MOTOR DISABILITIES, OF MENTAL RETARDATION, OF EMOTIONAL DISTURBANCE, OR OTHER ENVIRONMENTAL, CULTURAL, OR ECONOMIC DISADVANTAGE.) [105 ILCS 5/14-1.03(a)] Speech or Language Impairment: A communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child’s educational performance. Traumatic Brain Injury: An acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative or to brain injuries induced by birth trauma. Visual Impairment: An impairment in vision that, even with correction, adversely affects a child’s educational performance (includes both partial sight and blindness).
29
Brooke R. Whitted WHITTED, CLEARY + TAKIFF, LLC 3000 W. Dundee Road, Suite 303
Northbrook, IL 60062 (847) 564‐8662 (847) 564‐8419 Fax
Email: [email protected]
SOCIALLY MALADJUSTED
CHILDREN AND
SPECIAL EDUCATION SERVICES
30
"SOCIALLY MALADJUSTED" CHILDREN and
SPECIAL EDUCATION ELIGIBILITY
By: Brooke R. Whitted Sara Silverton
The distinction between "socially maladjusted" and "seriously emotionally disturbed" children is hard to determine at first glance. Under current decisional case law, one category receives special education services (seriously emotionally disturbed), while the other receives none. The IDEA definition of seriously emotionally disturbed 20 U.S.C. 1400 et.seq has specific characteristics that must be manifest for a student to be considered "eligible". Yet socially maladjusted children often exhibit similar behaviors. The dividing line seems to be whether the behavior affects the student's education performance. I. WHO IS AN "ELIGIBLE" IDEA STUDENT? In order to be seriously emotionally disturbed, a child must be determined to have a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance. The student must demonstrate:
An inability to learn which cannot be explained by intellectual, sensory, or health factors; -or- An inability to build or maintain satisfactory interpersonal relationships
with peers and adults (the federal definition uses teachers instead of adults, 34 C.F.R. § 300.5 (b)(8)); -or- Inappropriate types of behavior or feelings under normal circumstances;
-or- A general pervasive mood of anxiety, unhappiness, or depression;
-or- A tendency to develop physical symptoms or fears associated with
personal or school problems.
31
Note: This term includes schizophrenic children, but does not include children who are "socially maladjusted" unless it is determined that they are also "seriously emotionally disturbed" within the IDEA definition.
II. HOW IS "SOCIAL MALADJUSTMENT" DEFINED? "Socially maladjusted" had many different definitions. Two such
definitions are: (1) a child who has a persistent pattern of violating societal norms with truancy, substance abuse, a perpetual struggle with authority, is easily frustrated, impulsive, and manipulative, Doe v. Board of Education of the State of Connecticut, (D. Conn. Oct. 24, 1990); or (2) a child who is incapable of fully profiting from general education al programs of the public schools because of some serious social or emotional handicap but who is expected to profit from special education, Springer by Springer v. Fairfax County School Board, 27 IDELR 367 (1998).
In Doe v. Sanders, the Illinois State Board took the position that children
whose functioning was impaired by reason of dependency or addiction to alcohol or other substances were not "maladjusted" and therefore not eligible for special education funding. The term "maladjusted" was not defined in the school code but is commonly defined in the dictionary as poorly or inadequately adjusted; lacking harmony with one's environment from failure to reach a satisfactory adjustment between one's desires and the conditions of one's life. This definition has evolved over the years. In 1947 "maladjusted children" meant children who were "truant, incorrigible, delinquent or in need of special education facilities designed to prevent their becoming truant, incorrigible, or delinquent." In 1961, the definition was changed to include children "who because of social or environmental problems are unable to make constructive use of their school experience and require the provisions of special services designed to promote their educational growth and development." Doe v. Sanders, 189 Ill. App. 3d 572 (September 29, 1989).
III. WHO IS ELIGIBLE? Determining which children are actually "emotionally disturbed" is no
easy task, often relies heavily on the definition and criteria used, and is not always the same in every case. Almost everyone exhibits some variety of inappropriate behavior. However, the frequency, intensity, duration, and context must be considered in determining the presence of an emotional disturbance. Many teachers would say that 10% to 20% of their students have "emotional problems" while the actual number of those with severe and or chronic problems is closer to 2% to 3% of the school age population. Currently less than one-half that number are formally identified and receive special education services. Robert H. Zabel, ERIC Digest #454 Emotional Disturbances; ERIC Clearinghouse on Handicapped and Gifted Children, Reston, VA.
32
A. Example of a Finding of Ineligibility The U.S. Court of Appeals for the 4th Circuit recently found a conduct-
disordered child not eligible for special education services. Springer by Springer v. Fairfax County School Board, 27 IDELR 367 (1998). The parents of an eleventh grader requested reimbursement for their unilateral placement of their child. The hearing officer found their son's truancy, alcohol and drug problems were related to his conduct disorder, not to an emotional disturbance. Three separate psychologists examined their son and all three stated he was not seriously emotionally disturbed. His parents testified that he go along well with everyone, and it was determined his failing graders were related to his truancy and drug use, not his inability to learn. The court held that a "bad conduct" definition of serious emotional disturbance might include almost as many people in special education as it excluded. Therefore, this court upheld the decisions of the hearing officer and the district court, denying the parents the reimbursement they sought.
B. Finding of Eligibility In two cases the child was found to be SED and received special
education services or a 504 plan. In another, the child could be SED if a physical exam showed the disabilities did not result from a health issue.
1. West Chester Area School District, 18 IDELR 802 (March 21,
1992). The parents of a thirteen-year-old student with anxiety and
separation disorders was found to be seriously emotionally disturbed. The hearing officer determined that her disability did not substantially limit a major life activity (most notably learning). Experts on both sides stated that she needed individual therapy in order to maintain regular attendance, but there was no proof that she needed individual instruction. Therefore, she was eligible under section 504 to receive the necessary related services, but she was not eligible under IDEA.
2. Township High School District #211, 24 IDELR 1059 (June 3,
1996). Parents of a high school student unilaterally placed their child in a residential placement and were seeking reimbursement from the district. The district refused to pay because she was not seriously emotionally disturbed, according to their test results. However, the residential placement staff found that she was in fact SED. The overwhelming evidence was that she was either unhappy or depressed over a considerable length of time, that this mood affected all of her behavior, and that her emotional state affected her scholastic performance. The review officer affirmed
33
the decision requiring the district to pay room and board from January 23, 1996 until it is shown that a less restrictive environment is appropriate.
3. Cornwall Central School District Board of Education, 17 EHLR
10239 (June 6, 1991). The parent of a fourteen-year-old child appealed a decision that
their child was not seriously emotional disturbed. The review officer held that the child's emotional difficulties had, in fact, impacted significantly on his education performance even though the child had not failed any courses. The child also experienced physical symptoms at school. The hearing officer determined that the child met the criteria for SED but due to the fat that no observations had been done in the classroom, a final decision on his eligibility would have to wait until the observations were complete. These observations would provide information about the child's learning style, his educational strengths and his weaknesses enabling the school to develop an appropriate individualized educational plan ("IEP").
C. Other Finding of Ineligibility In other instances the hearing officer has overruled the labeling of a child
as SED. In the City Sch. Distr. Of NYC, 20 IDELR 727 (December 6, 1993), the parents of a child request a due process hearing to challenge the school district's classification of their daughter as SED. The state review officer held that a classification of emotionally disturbed cannot be basis for excluding health factors as a source of the child' academic difficulties. It was ordered that within thirty days a physical examination must occur and a new recommendation as to classification and placement be made.
More often than not, the schools and then the hearing officers find the
child does not qualify as seriously emotionally disturbed because they are only "socially maladjusted." Therefore, no services are provided for those students. The following cases summarize the holding of some of those decisions.
Morgan Hill Unified Sch. Dist., 19 IDELR 557 (November 5, 1992). The parent of a twelve-year-old student wanted their son placed
in a residential setting. However, their son was found to be learning disabled, not emotionally disturbed. The hearing officer found the child did not met the criteria of SED because he was socially maladjusted and therefore not entitled to special education services. The hearing officer rejected the district's proposal and directed the IEP team to meet and determine an
34
appropriate day treatment program that would include therapeutic individuals as well as family counseling.
Corpus Christi Independent Sch. Dist., 18 IDELR 1281 (August 7,
1992). The parent of an eighteen-year-old student wanted their son
placed residentially because he was SED. The hearing officer held for the district because it was determined the child was learning disabled and socially maladjusted, not emotionally disturbed. The officer stated that if a child is SED and socially maladjusted, then he qualifies as SED, and his social maladjustment does not preempt the SED as a qualifying disability for special education and related services. The duty of special education is not to force socially maladjusted children to school by residentially placing them if they chose to remain truant. Therefore, the child (should he choose to attend school) would have his needs met through the proposed IEP.
Fauqueir County Pub. Sch., 20 IDELR 579 (August 11, 1993). The parents of nine-year-old wanted their daughter classified as
seriously emotionally disturbed so she could receive special education services. The hearing officer held for the district and denied placement in special education. The hearing officer found that the child did exhibit rage and behavioral problems as home and was categorized as "asocial" but she was making significant progress in school. The officer also found her to be well adjusted in the school setting. Therefore, the child was benefiting from the regular education program and this is where she would remain.
Bessemer City Board of Education, 19 IDELR 652 (December 16,
1992). The parent of a student who was expelled form school for
fighting brought this action claiming their son was "socially maladjusted" and therefore could not be expelled from school. The school said that even if the child was socially maladjusted, he would have to meet the IDEA criteria for SED before becoming ineligible for expulsion. The hearing officer then found that the child did not meet the definition of socially maladjusted, therefore, he was not protected by the state law guarantees for exceptional children, and his expulsion had not been improper.
A. E. v. Independent School District #25 of Adair County, Oklahoma
(10th Cir. June 10, 1991; 17 EHLR 950).
35
Parents of a child sought to have their daughter classified as emotionally disturbed so she could receive special education services. This court affirmed the ruling of the trial court in finding the child was not emotionally disturbed. The testimony present in the case supported the finding that A.E. suffered from a conduct disorder, but was not SED within the federal definition. A.E. would continue to receive services for her learning disability in math, but not services for the SED diagnostic category.
Doe v. Board of Education of the State of Connecticut, (D. Conn.
October 24, 1990; 17 EHLR 37). The parents of a child with emotional problems brought an appeal
from the hearing officer's decision. Although it was confirmed the child had some emotional difficulties, it was determined that these did not impede or adversely affect his educational performance. The district court affirmed the decision of the state board of education that Doe was not SED and therefore was not entitled to special education services.
IV. CONCLUSION Special educators have renewed their debate over how to define children with emotional disturbances who qualify for special education when the new IDEA was proposed. The new IDEA did drop the word "serious" from emotionally disturbed but this change will not have an effect on the definition. Until an entirely new definition is created listing specific behaviors that can be observed in interviews and in social settings, this area of law will continue in the direction of denial of services.
36
Brooke R. Whitted Lara A. Cleary Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 847/564-8662 847/564-8419 Fax Email: [email protected]
SUMMARY OF RESEARCH ARTICLES:
Prevalence of Children with Disabilities in the Juvenile
Delinquent/Corrections Population
37
Summary of Research Articles: Prevalence of Children with Disabilities in the Juvenile
Delinquent/Corrections Population 1. Robinson, T.R., Rapport, Jane K. Providing Special Education in the
Juvenile Justice System. Remedial and Special Education 20 (1), 19-26. (1999).
A. Purpose: This article discusses the pertinent issues in providing
special education services in the juvenile justice system. It addresses the prevalence rates, problems with correctional facility personnel, recent developments, and recommendations for facilitating special education programming in correctional institutions.
B. Findings: “Congress has made it clear that the responsibility for
educating youth with disabilities does not terminate upon incarceration.” Although state agencies are mandated to provide appropriate educational services to youth with disabilities who are incarcerated, evidence suggests that many receive substandard programs. “Numerous data sources indicate that the prevalence of juveniles with disabilities in correctional facilities far exceeds the prevalence noted in the general population.” The most commonly occurring disabilities within correctional facilities are learning disabilities, behavioral disorders, and mental retardation. Although no conclusive evidence supports any single theory regarding why delinquency occurs, social deficits seem to be a superceding factor. The courts have held that correctional facilities must provide juveniles with appropriate educational services in an expedient manner. Also, the Department of Justice is required to make a good faith effort to identify and serve youth with disabilities. Despite the legal mandates, few programs have been developed to serve the educational needs of incarcerated juveniles with disabilities. On an already overburdened juvenile justice system, responsibility for administration and cost of special education services is a controversial issue because numerous agencies are often involved in providing services. The right to a free and appropriate public education in the least restrictive environment does not entitle students with special needs to avoid the legal consequences of their actions. For safety reasons, the least restrictive environment for inmates has to be somewhat restrictive.
Conclusion: The fact that all children and youth, including incarcerated
juveniles, with disabilities are entitled to a free and appropriate public education has been affirmed by a number of courts located throughout
38
the nation. The problem is that incarcerated youth with disabilities are frequently not receiving the services for which they qualify according to the Individuals with Disabilities Education Act.
2. Leone, Peter E., Ph.D., et. al. Understanding the Over Representation of
Youths With Disabilities in Juvenile Detention. 3 D.C. L. Rev. 389. (1995).
A. Purpose: Youths with disabling conditions are grossly over
represented among those detained and confined in juvenile correction systems. The authors note that while only 7% of all public school students in the United States have been identified as having disabilities such as mental retardation, emotional disturbance, and learning disabilities, in the juvenile justice systems the prevalence rate is estimated to be between 12% to 70%. Some jurists, court personnel, and counsel representing youths charged with delinquency may not have a good understanding of the behaviors associated with disabling conditions. Therefore, such behaviors may be misinterpreted by officials in the juvenile justice system and contribute unnecessary detention. This article examines the detention of youths with disabilities in juvenile corrections, and tries to discover what, if anything, professionals can do to provide equitable treatment to youths with disabilities.
B. Findings: The authors examined the characteristics of some juveniles
with disabilities that may make them more susceptible to detention prior to adjudication. Such characteristics include communication problems and poor comprehension. They noted that across the disability categories such characteristics cause the children with disabilities to appear “uncooperative,” “disrespectful,” “angry,” and “irritable,” and act to increase the likelihood that these youths will have negative encounters with the juvenile justice system.
C. Conclusion: Professionals in the juvenile justice system must be
aware of the characteristics attributed to the different disability categories, and must be able to discriminate between behaviors stemming from disabilities that pose little or no threat and those that are true indicators of dangerousness. In addition to learning to identify children with disabilities, juvenile justice professionals must also learn how to provide appropriate special services. Given the disproportionate numbers of youths with disabilities entering the juvenile justice system, the authors suggest that “basic information
39
and skills should become a mandatory part of training for juvenile justice professionals.”
3. Brier, Norman. The Relationship Between Learning Disability and
Delinquency: A Review and Reappraisal. Journal of Learning Disabilities 22 (9), 546-553. (1989).
A. Purpose: This article reviews research on the prevalence of learning
disabilities among delinquent populations. The author describes and evaluates three hypotheses explaining the “link” between learning disability and delinquency. The author also covers the general risk factors for the onset of delinquency.
B. Findings: “Individuals with learning disabilities have been noted to
comprise a disproportionately large segment of juvenile delinquent populations.” The prevalence rates have varied widely, ranging from 12% or less to 70% or more. Three hypotheses have been proposed to explain why individuals with learning disabilities are more likely to become delinquent than non-learning-disabled individuals. All three explanations view a learning disability as the single or primary cause of delinquency. The susceptibility hypotheses proposes that the neurological and intellectual difficulties of learning disabled individuals directly contribute to antisocial behavior. The school failure hypotheses proposes that the school failure typically experienced by learning disabled individuals is a first step in a sequence that culminates in delinquency. The differential treatment hypotheses raises three questions:
1. Are individuals who are learning disabled more likely to be picked up by the police than non-learning disabled individuals for comparable levels of delinquent activity? 2. Are individuals with learning disabilities who are charged with a violation at greater risk of adjudication than non-learning disabled individuals? 3. Are individuals who are learning disabled more likely to receive a severe disposition from juvenile court than non-learning-disabled youngsters?
The data clearly exhibited that individuals with learning disabilities are treated differently by the judicial system. There are three factors thought to predispose youngsters towards delinquency; Low IQ; psychopathology in the parent; and difficulties in parent management.
C. Conclusion: The presence of a learning disability does seem to place a
youngster at an increased risk of a delinquent outcome. Three
40
hypotheses have been proposed to explain why individuals with learning disabilities are more likely to become delinquent. Research is still needed to test these proposed relationships. With such knowledge, youngsters who are at a high risk can be identified early and provided with preventative intervention. Also targeted treatments can be established for those individuals with learning disabilities who are already delinquent.
4. Grande, Carolyn G. Delinquency: The Learning Disabled Student’s
Reaction to Academic School Failure? Adolescence 23 (89), 209-219. (1988).
A. Purpose: This article reviews research regarding delinquency as the
learning disabled student’s reaction to academic school failure. The author also defines a target population for experimental research in this area.
B. Findings: The author examined studies concluding that there is a
correlation between disruptive or delinquent behavior and academic achievement. Research regarding the failure-delinquency relationship focuses on factors such as socioecomonic status, sex, and age. Dropout rate has also been related to unsuccessful school experiences. The author examined studies for defining a target population for experimental research regarding delinquency as the learning disabled student’s reaction to academic school failure. One study investigated the relationship between successful (70% and above) and failing (below 70%) daily grade notifications and school disciplinary offenses of six 9th-grade learning disabled males. It was determined that a moderate negative correlation existed between success and school disciplinary offenses for the students. A comparative analysis of male and female delinquency revealed that males tend to commit offenses at a higher frequency than females. Statistics consistently demonstrate that male adolescents, overall, tend to commit a majority of crimes. There was no direct correlation assessed concerning socioecomonic status and delinquency.
C. Conclusion: Research results lead to the conclusion that a link
between learning disabilities and juvenile delinquency is established. Learning disabled male adolescents are targeted as likely candidates for delinquent involvement and are, therefore, described as the target population for experimental research. Whether delinquency is the learning disabled student’s reaction to failure remains to be demonstrated.
41
5. Larson, Katherine, A. A Research Review and Alternative Hypothesis
Explaining the Link Between Learning Disability and Delinquency. Journal of Learning Disabilities 21 (6), 357-363. (1988).
A. Purpose:
1. This article reviews and evaluates current hypotheses that attempt to explain the link between learning disabilities and juvenile delinquency. The author notes that the high prevalence rate of children with disabilities in the juvenile delinquent population indicates the need to synthesize historical and current data and evaluate empirical support of existing causal hypothesis. Estimates of prevalence of learning disability among delinquents range from 26% to 73%. Children with learning disabilities are adjudicated at about twice the rate as non-learning youth, and LD youth have greater recidivism and parole failure.
2. The article examines three main hypotheses; 1) The School Failure
Hypothesis, which postulates that learning disability leads to school failure, which leads to a negative self-image, which in turn results in school dropout and delinquency; 2) The Differential Treatment Hypothesis, which proposes that children with learning disabilities and non disabled peers engage in the same rate and kind of delinquent behaviors; however, police, social workers, and other officials treat children with LD differently so as to increase incidence of arrest and/or adjudication; and 3) The Susceptibility Hypothesis, which contends that learning disabilities are frequently accompanied by “a variety of socially troublesome personality characteristics.” The author also suggests a different approach called the Alternative Hypothesis.
B. Findings: First, the author examined each of the three theories and rejected all
of them, stating that the research has not indicated a connection between any of the theories and the LD/juvenile delinquent link. She noted that both the school failure and differential treatment hypotheses are not supported by empirical evidence. The susceptibility hypothesis lacks empirical testing, and the concept of susceptibility appears to be too global to be systematically testable. Finally, the author suggests that an alternative theory may be able explain the link. This approach postulates that ineffective social cognitive problem-solving skills increase risk for delinquency in learning disabled youth.
C. Conclusion: The author notes that more research, specifically that
which tests relationships within the hypothesis, is needed to further
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validate the alternative approach. Because delinquency is of such serious concern to contemporary society, this type of research is of vast importance.
6. Murphy, Donna M. The Prevalence of Handicapping Conditions Among
Juvenile Delinquents. Remedial and Special Education 7 (3), 7-17. (1986).
A. Purpose: This article reviews and summarizes the literature regarding the prevalence of disability conditions among juvenile delinquents, because such information is scattered throughout various educational and correctional journals, and institutional and governmental reports. The author notes that interest in this area began with the implementation of Section 504 of the Vocational Rehabilitation Act of 1973, and the Education for all Handicapped Children Act of 1975, but has recently intensified following national surveys revealing that an extraordinary number of delinquents have disabilities.
B. Findings: The overall prevalence rates of children with disabilities in
the juvenile delinquent population, based both upon large-scale official estimates of disabilities among delinquents and upon direct examination of the records of selected samples of delinquents, range from nearly 30% to more than 60%. In contrast, the Office of Special Education Programs (OSEP), found that only 10.76% of children in the general population have disabilities. The research also indicated that the prevalence of some disabilities among juvenile delinquents, particularly emotional disturbance, learning disabilities, and mental retardation, are extremely disproportionate to the prevalence estimates of non-disabled youths. The author pointed out that the instability among prevalence rates may be attributed to a number of factors, including inconsistency between official definitions, no uniform criteria for identifying disabilities, and differences in terminology between the states.
C. Conclusion: Although the research in this area has yielded
inconsistent results, the studies do indicate that a disproportionate percentage of young offenders have disabilities, and the prevalence of certain disabilities may be much greater among this population than among the general population of children and youth. The author noted that all of the research, taken together, constitute an “urgent call for a comprehensive, interdisciplinary approach to the systematic identification of young offenders with disabilities, consistent provision of appropriate special education services by qualified
43
personnel, and regular monitoring of responsible agencies for compliance with state and federal laws.”
7. Keilitz, Ingo & Dunivant, Noel. The Relationship Between Learning
Disability and Juvenile Delinquency: Current State of Knowledge. Remedial and Special Education 7 (3), 18-26. (1986).
A. Purpose: The background, research, and results of a multi year
project, the Learning Disability-Juvenile Delinquency Project (LD-JD Project) were examined in this article. The LD-JD project, initiated in 1976, was designed to research whether a link existed between learning disabilities and juvenile delinquency, and, if so, what the nature of this link was. The researchers also wanted to examine five theories/hypotheses that had recently been advanced to explain the relationship between learning disabilities and juvenile delinquency.
B. Procedures: The research of the LD/JD study consisted of three studies. The two main studies were an age cross-sectional study and a longitudinal study. These were conducted in an effort to determine whether LD is related to delinquency and, if so, to determine the nature of that relationship. The age cross-sectional study was based on a sample containing a cross-section of age groups, measured at a single point in time. The sample was composed of 973 teenage boys from the public schools of Baltimore, Indianapolis, and Phoenix, who had no prior record of official delinquency, and 970 boys from the juvenile courts and youth correctional facilities in the same three cities. The longitudinal study was an investigation of 351 boys from the cross-sectional sample who had no history of official delinquency.
C. Analysis of Results: Both studies indicate that adolescents with
learning disabilities had significantly higher rates of general delinquent behavior and they engaged in more violence, substance abuse, and school disruption than non-learning disabled adolescents. Additionally, the likelihood of arrest and adjudication was substantially higher for adolescents with learning disabilities. The research indicated that children with learning disabilities make up a significant percentage of those who have been officially adjudicated, with most estimates falling in the 30-50% range. The studies also confirmed the existence of three of the five theories/hypotheses that attempted to explain the link between LD and juvenile delinquency. These theories were the school failure theory, the susceptibility theory, and the differential treatment theory.
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D. Conclusion: The results of the JD/LD Project have established that a link between learning disabilities and delinquency exists. The authors noted that adolescents with learning disabilities are at a relatively high risk for delinquency. This implies that juvenile justice, human services, and educational agencies should target special prevention and rehabilitation programs for this population.
8. Winter, Bill. Learning Disability: The Young Offenders Curse. 63 Apr.
ABA J. 427. (1983).
A. Purpose: This article, printed in the American Bar Association Journal, briefly described the findings reported at a recent, mid-year ABA meeting. The topic of discussion at this meeting was the issue of children with disabilities and juvenile delinquency.
B. Findings: According to the chief of psycho-educational services at the
Children’s Evaluation and Rehabilitation Clinic, at the Albert Einstein College of Medicine, in New York City, it is estimated that 75% of all juvenile delinquents have learning disabilities. This expert also noted that the symptoms of learning disabilities include impulsiveness, lack of control, lack of reflection, hyperactivity, poor attention, and the inability to acquire proficiency in basic learning skills. This expert also noted that 80% of all children with learning disabilities are boys. Other experts present at this meeting placed the responsibility for children with learning disabilities in juvenile courts, on the juvenile court judges. It was alleged that many juvenile justice systems are guilty of “criminal” neglect in ignoring this problem and actually are at odds with school systems over what to do.
C. Conclusion: Finally, it was suggested that courts need to be aware of
the administrative processes that can be used to obtain services for a child with a learning disability. Under Federal Law a “free and appropriate education” can be ordered for LD children. A judge can be the first person to initiate the process by identifying a child as LD and requesting an evaluation.
9. Morgan, David I. Prevalence and Types of Handicapping Conditions
Found in Juvenile Correctional Institutions: A National Survey. The Journal of Special Education, 13 (3), 283-295. (1979).
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A. Purpose: This article summarizes the findings of a comprehensive national survey of all juvenile offenders with disabilities committed to state correctional facilities throughout the United States. The stated purpose for this survey was to collect “information useful to educators, correctional administrators, and legislators alike in their efforts on behalf of incarcerated children, both from the standpoint of possible preventative interventions in elementary and secondary educational systems.”
B. Survey Procedures: Questionnaires were sent to state juvenile
correctional administrators in 50 states and 6 U.S. territories. The total number of responding institutions was 204, representing every state and all but one of the territories. The main part of the survey requested the total number of children in each disability category at the facility. The categories of disabilities were derived directly from P.L. 94-142, the controlling federal law at the time the survey was conducted. Additional statistical information derived from the survey included educational participation, teacher-pupil ratios, and fiscal expenditures.
C. Analysis of Results: The survey revealed an excessive number of
juveniles with disabilities in the correctional institutions. 42.4% of delinquent children committed to correctional facilities were found to have some type of disability. In the general population, however, the incidence of children with disabilities is only 12.3%. The disability categories with the highest incidence rates were emotional disturbance (16.23%), learning disabilities (10.59%), and educable mental retardation (7.69%).
D. Conclusion: After listing the statistical information by state, and
conducting a brief literature review of previous research in this area, the author emphasized the need for further research on the reasons behind the high prevalence of children with disabilities in the juvenile corrections population. He cautioned against a strict reliance on the statistics collected, noting that there could be many explanations for why such an extremely high prevalence rate was reported, including administrative policies and broad interpretations of category definitions.
(Emphasis added in text where appropriate.)
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WHITTED, CLEARY & TAKIFF LLC
3000 Dundee Road Suite 303
Northbrook, IL 60062 Phone: 847-564-8662
Fax: 847-564-8419 Website: www.whittedclearylaw.comm
Email: [email protected]
What Happens Whena School District
Fails to Respond to the Needs of a
Suicidal Child?
47
Potential Liability Risks for a School District's Failure to Act When it has Knowledge of a Suicidal Child in its
Population
By Brooke R. Whitted, Malcolm C. Rich This presentation will deal with special education liability and personal liability of school district officials when a district fails to act when it has knowledge of a suicidal child in its population. Special Education Liability A school district can be held liable when it fails to serve a student within its population when it has knowledge that a student is or has been suicidal. This was the case in the March 2002 impartial due process hearing decision in case of KJE vs. Oakwood Community Unit School District #76 (Case No. 25-553).
Facts KJE had been diagnosed since October 1999 with a number of mental illnesses. In October of 1999, the parents of KJE reported to the school principal that their daughter had informed them that she had planned to kill herself. The principal failed to request or even suggest a case study evaluation for special education services or to offer any services whatsoever to KJE. In December 1999, KJE once again threatened to kill herself and also threatened to kill her mother after becoming violent with her parents. She was subsequently hospitalized and diagnosed with major depression. On December 31, 1999, KJE attempted to commit suicide a second time. She subsequently informed the school principal that she was continuing to have suicidal feelings. Soon thereafter, she made a third suicide attempt and was admitted to an inpatient psychiatric unit. After her third psychiatric hospitalization, KJE’s parents met with the school principal and informed her of the suicidal history of their daughter. The principal offered no services to KJE and did not refer her for a case study evaluation. At age 14, KJE was eligible to attend the school district's high school, which also refused to provide appropriate special education services. The parents were forced to home school KJE while they searched for an appropriate residential placement. In November 2001, the school district conducted an IEP meeting to discuss special education eligibility and placement. Despite an overwhelming amount of evidence that KJE suffered from a severe emotional disturbance, the school district team decided that KJE was ineligible for special education services. During the session, the team's social worker presented a letter describing KJE as being a "very real risk to herself." But the team made no mention of KJE's four suicide attempts, history of
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psychotic behavior, or socialization problems, but instead stressed that she had received passing grades in 7th and 8th grade. In determining that KJE was not eligible for special education services, the meeting notes stated that it was not possible to determine an adverse effect on educational performance since KJE was not attending classes full-time at a regular education high school setting. The parents filed for a due process hearing and moved KJE to a residential facility.
Issues 1. The school district, as its defense, claimed that KJE was not "seriously
emotionally disturbed" and she was therefore not entitled to special education services.
2. The school district also claimed that KJE was not entitled to special education
services because she was not failing her courses and was progressing from year to year.
3. The district further claimed that it was not required to provide a case study evaluation because the parents failed to request it.
Analysis
The School District Had Adequate Knowledge To Establish That KJE Was Seriously
Emotionally Disturbed The basic tenets of IDEA are that all applicable laws and regulations require a school district to demonstrate that it properly identifies the nature and severity of a student's suspected disability and offers the student a free appropriate public education in the least restrictive environment. In so doing, a district must act consistently with procedural safeguards. Part of these safeguards is that a school district has an affirmative duty to actively seek out and identify children in need of special education services. The hearing officer in the KJE case emphasized the fact that the school was aware of KJE's suicide attempts, psychiatric hospitalizations, and telephone conversations that were made between the parents and the middle school principal and the school district's social worker. According to Federal Regulations (34 C.F.R. Sec. 300.7(a)), in order to be identified as an emotionally disturbed student, a child must be determined to have a condition exhibiting one or more of the following characteristics over a long period of time. A student must demonstrate: Inability to learn which cannot be explained by intellectual, sensory, or health
factors; or An inability to build or maintain satisfactory interpersonal relationships with
peers; or Inappropriate types of behavior or feelings under normal circumstances; or A general pervasive mood of anxiety, unhappiness, or depression; or
49
A tendency to develop physical symptoms or fears associated with personal or school problems.
The hearing officer, in determining that the student met the requirements of the
definition of severely emotionally disturbed, stated: "Had the local school district properly investigated the student's academic performance, it is clear to the hearing officer that an investigation would have led to the conclusion that the student met the requirements." The hearing officer rejected the school district's notion that because KJE was not failing academically, she did not meet the emotional disturbance criteria.
In Township High School District #211, 24 IDELR 1059 (June 3, 1996), parents of a high school student unilaterally placed their child in a residential placement and sought reimbursement from the district. The district refused to pay because she was not "emotionally disturbed," according to their test results. A hearing officer found, however, that there was overwhelming evidence that she was either unhappy or depressed over a considerable length time, and that her emotional state affected her academic performance.
In KJE's case, it was clear that she had been seriously depressed, and that this
depression had affected her behavior -- KJE had attempted suicide on four separate occasions. Furthermore, it was clear that this depression had affected her scholastic performance. She was not failing her academic courses only because she possessed higher cognitive ability, however not how our regulations define a "educational performance":
Educational Performance: A student's academic achievement and ability to establish and maintain social relationships and to experience a sound emotional development in the school environment (emphasis added, 23 IAC 226.75).
The hearing officer rejected the notion that the school could ignore its knowledge
of KJE’s suicidal tendencies and other serious emotional difficulties simply because she was not failing her academic courses, as this conveyed a profound ignorance of the regulatory definition..
There is No Requirement That a Student Must Be Failing Academically Before
He or She is Entitled to Special Education Services In the Rowley case, 458 U.S. 176, 102 S.Ct. 334, 73 L.Ed. 2nd 690 (1982), the
U.S. Supreme Court noted that Amy Rowley was a deaf student who performed "better than the average child in her class and is advancing easily from grade to grade." 73 L.Ed. 2nd at 699. In fact, Amy was receiving A's and B's in her classes but under the IDEA, the school district nevertheless found her eligible for special education services. The Supreme Court ruled that while the education system does not have to maximize the potential of each handicapped child, the school system's commitment to children with disabilities requires that these children must have access to specialized education and
50
related services. And, these services must be individually designed to provide significant educational benefits to each handicapped child.
A child cannot be excluded from special education services just because he or she
is not failing academically. The Supreme Court stated: "We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a free appropriate public education. 73 L.Ed. 2nd at 1710.
Hearing officers and judges have concurred in cases throughout the country. In
Cornwall Central School District Board of Education, 17 E.H.L.R. 10239 (June 6, 1991), the parent of a 14-year-old child appealed a decision that their child was not seriously emotionally disturbed. The review officer held that the child's emotional difficulties had, in fact, impacted significantly on his educational performance even though the child had not failed any courses. The child also experienced physical symptoms at school. The hearing officer determined that the child met the criteria for SED, but due to the fact that no observations had been done in the classroom, the final decision on his eligibility would have to wait until observations were complete.
In Manhattan Beach Unified School District, 34 IDELR 249 (March 14, 2001), an
administrative hearing officer ruled that the parents of a 16 year old with serious emotional difficulties who was unilaterally placed in a private facility were entitled to reimbursement by the school district. In this case, as in the case of KJE, the student had never been found eligible for special education. At the time of the hearing she was living in a therapeutic boarding school. When the student was in eighth grade she began exhibiting disturbing behaviors that were in many ways similar to those exhibited by KJE. She, like KJE, was hospitalized in a psychiatric facility and had made a suicide attempt. The school district in Manhattan Beach found that the student did not meet the eligibility criteria for special education in part because in the district's view, she was doing well academically.
The hearing officer in Manhattan Beach disagreed with the school district, finding
that the student was seriously emotionally disturbed in light of the fact that she demonstrated a general pervasive mood of unhappiness and depression; exhibited characteristics of emotional disturbance for over 6 months; exhibited these characteristics in home, school and therapy environments; and was not achieving "mastery" in her classes -- her class work was sufficiently affected by her disability. The hearing officer concluded that because the school district did not find the student eligible for special education, it did not provide a free appropriate public education and ordered the school district to reimburse the parents for their unilateral private residential placement.
Two other cases establish the principle that a student need not be failing
academically before he or she is entitled to special education services: 1) In Yankton School District vs. Schramm, 93 F. 3rd 1369, 24 IDELR 704 (8th
Cir. 1996), a child with Cerebral Palsy who was achieving high marks in school still
51
qualified as a child in need of special education under IDEA, when the child continued to need specially designed instruction and related services;
2) In Schoenfield v. Parkway School District, 138 F. 3rd 379, IDELR 845 (8th Cir.
1998), a court found that academic performance at or above age level does not necessarily mean a child is not disabled or that the education satisfies the standard of appropriateness.
A School District Must Provide a Case Study Evaluation Even If Parents Do Not
Request It The hearing officer in KJE rejected the notion set forth by the district that the they
were required to provide a case study evaluation "because the parents did not request one." The hearing officer found that by failing to investigate KJE's special needs, the school district “failed to comply with the most elementary requirements of “child find” as outlined in the Illinois Administrative Code. Under the "Child Find" provision, each school district is responsible for actively seeking out and identifying all children from birth through age 21 within the district who may be eligible for special education and related services. The hearing officer therefore ordered the school district to pay for private residential placement.
In general, the KJE case shows that knowledge by a school district of a student’s
suicidal ideation and other serious emotional difficulties is enough to require a case study evaluation. Moreover, a school district will be found liable should it choose to ignore these therapeutic problems simply because a child is progressing from grade to grade. Personal Liability of School Officials There are two relatively recent cases which establish that it is possible to assign personal liability to selected school officials when serious behavioral difficulties are known to the school district, but are ignored. In November 2000, the Superior Court in Connecticut awarded more than $67,000.00 to a special education student who was attacked by another special education student, based on the evidence that the assistant principal had reason to know of the potential harm to the victim. Kendall B. West Haven Department of Education, et. al., 33 IDELR 270 (Conn. Superior Ct). In this case, a special education student suffered from frequent harassment and bullying from another student. The student told his parents about the harassment, and they told him to inform school officials. The student told the assistant principal of the other student's actions, which included racial epithets, spitting, and pushing. The assistant principal stated that would take care of the matter, but she took no action. She did not inform other school officials and she left the premises for the day shortly after meeting with the student. Later that day, the student was attacked by the other student in the cafeteria. The student victim's head hit the floor, knocking out his two front teeth and breaking his jaw on both sides.
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The court found that because the assistant principal was informed of the previous attacks, she had an affirmative duty to take action to prevent further attacks. The court noted that "the evidence unambiguously establishes that she did nothing." Given the nature of the inaction, the assistant principal was not shielded by the doctrine of governmental immunity. She knew of "likely imminent harm to an identifiable person," and was therefore liable for negligence. In a Federal District Court action, a judge has ruled that a Santa Barbara high school district administrator was personally liable for damages under Section 1983 of the Federal Civil Rights Act for violating a mother's right to obtain a free appropriate public education for her special needs son, as required by IDEA. Goleta Union Elementary School District vs. Andrew Ordway, CD 99 – 07745 (CD CAL, verdict December 5, 2002). The mother of the special needs student alleged that the director of student services for the Santa Barbara High School District placed her son in a new school without investigating whether the new school met the student's special education needs. The school official had moved for summary judgment, maintaining that she could not be held personally liable under Section 1983 for a violation of IDEA, because "mere negligence on the part of a government official is insufficient to support such a claim." The court held that a showing of heightened culpability is not required to establish a violation of IDEA -- "…all that is required to establish a Section 1983 claim is proof of a violation of IDEA under color of law." The court determined that the official denied the student a free appropriate public education by failing to offer him an appropriate placement. This official's conduct constituted a violation of IDEA. A trial on the parent's request for damages has been scheduled. Conclusion Once a determination is made that a school district violated IDEA by not acting upon knowledge that it had in relation to special needs of a student – such as suicide attempts or suicidal ideation -- there is school liability and, in certain instances, personal liability of school education personnel for damages resulting from the misconduct.
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Prepared by: Whitted, Cleary & Takiff LLC
3000 W. Dundee Road, Suite 303 Northbrook, IL 60062
(847) 564-8662 (847) 564-8419 FAX Email: [email protected]
THE ROWLEY CASE:
WHAT DOES IT
REALLY MEAN?
54
THE ROWLEY CASE: WHAT DOES IT REALLY MEAN? By Brooke R. Whitted
Whitted & Cleary, LLC
INTRODUCTION
The case of Rowley v. Hendrick Hudson School District1 was the U.S. Supreme Court's first interpretation of what was then called the Education for All Handicapped Children Act (now the Individuals with Disabilities Education Act, “IDEA”). This important decision is required reading for anyone working in special education. The case concerned a hearing impaired girl named Amy Rowley, who was a student at the Furnace Woods School in Hendrick Hudson Central School District, Peekskill, N.Y. Amy had minimal residual hearing and was an excellent lip reader. During the year before she began attending school, a meeting between her parents and the school administrator resulted in a decision to place her in a regular kindergarten class. Several administrators prepared for Amy's arrival by attending a course in sign language interpretation, and a teletype machine was installed in the principal's office to facilitate communication with her parents, who were also deaf. At the end of the trial placement it was determined that Amy should remain in the kindergarten class, but that she should be provided with an FM transmitter. Amy successfully completed her kindergarten year.
As required by the Act, an IEP was prepared for Amy during the fall of her first
grade year. The IEP provided that Amy should be educated in a regular classroom, should continue to use the FM device, and should receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts of the IEP, but insisted that Amy also be provided a qualified sign language interpreter in all her academic classes in lieu of the assistance proposed in other parts of the IEP. Such an interpreter had been placed in Amy's kindergarten class for a two-week experimental period, but it was reported that Amy had no need for this service. This conclusion was reached after consultation with the school district's “Committee on the Handicapped,” which had received expert evidence from Amy's parents on the importance of an interpreter. The Committee also received information from Amy's teacher and other persons familiar with her academic and social progress, and visited a class for the deaf. When their request for an interpreter was denied, the Rowleys demanded and received an administrative hearing. After receiving evidence from both sides, the hearing officer agreed with the administrators' determination that an interpreter was not necessary because "Amy was achieving educationally, academically, and socially" without such assistance. The examiner's decision was affirmed on appeal by the New York Commissioner of Education. The Rowleys then brought an action in the United State District Court for the Southern District of New York, claiming that the administrators' denial of the sign language interpreter constituted a denial of the "free
1 Board of Education of the Hendrick Hudson Central School District, et. al. v. Amy Rowley, et. al., 458 U.S. 176, 102S.Ct.3034 (1982).
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appropriate public education" guaranteed by the Act. (Excerpt from the court's own description at 458 US 176 at 183)
The holdings in the Rowley case have become the standard of analysis for every subsequent special education case arising in the Federal and State courts. Consequently, a working knowledge of the fundamental analysis developed by the Supreme Court justices is important when evaluating any special education matter. In this paper, this analysis will be examined in detail. Any practitioner or educator looking at a special education file should keep this analysis in mind at all times. Since all other courts do this as well, the questions asked by the Rowley court are instructive even today, well over twenty years later. The Rowley Questions: These are best presented in the form originally developed by the Supreme Court:
Therefore, a court's inquiry in suits brought under §1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act? [FN27] And second, is the individualized education program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? [FN28] If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more. (458 US 176, 204) (Emphasis added.)
As the analysis goes, if the school district has not complied with the Federally
mandated procedures, and if the violation resulted in some form of significant harm to the student, all educational decision making from the point of the violation forward is suspect. What this means is that judges will be more likely to step in and substitute their judgment for that of the educators, given a significant procedural violation. If, on the other hand, the school district has complied with all of the procedures in the Act, then the analysis requires asking the second "Rowley question."
The Supreme Court, however, first examines the priorities assigned by Congress to procedural requirements:
But although we find that this grant of authority is broader than claimed by petitioners, we think the fact that it is found in §1415, which is entitled "Procedural Safeguards," is not without significance. When the elaborate and highly specific procedural safeguards embodied in §1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us
56
no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e.g. §§1415(a)-(d), as it did upon the measurement of the resulting IEP against a substantive standard. We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP. (458 US 176, 204; emphasis added.)
"Significant" Violations: A recurrent problem is whether a procedural violation under Rowley is "significant." In 2002, a district was held (at 38 IDELR 85) to have violated "several" procedural requirements of the IDEA but even so, the student received all of his IEP services. The court therefore concluded that there was no resulting denial of a free appropriate public education under IDEA. The procedural violation, therefore, must actually result in some harm to the student before it becomes "significant." Adverse Educational Impact: Another recurrent problem is the issue of a student passing from grade to grade and still remaining eligible for services. Amy Rowley herself got good grades, and the court held that she was not entitled to a sign language interpreter as requested by her parents. This did not mean that she was ineligible for other special education services, as she was still hearing impaired and met the definitional requirements. In fact, the court itself in Rowley said:
We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to this situation. (458 US 176 at 202; emphasis added.)
In the Cornwall case (17 EHLR 10239/1991) the court held that there was a significant impact on educational performance even though the child had not failed any courses. In Yankton (93 F. 3rd 1369, 8th Cir. 1996), a cerebral palsy child was getting
57
high grades but was still entitled to specially designed instruction and related services. In Schoenfield (8th Cir. 1998) the court held that academic performance at or above age level does not necessarily mean a child is not "disabled," or that the education satisfied the standard of appropriateness under Rowley. It can be seen, then, that while Rowley holds that passage from grade to grade is one important indicator of whether an educational benefit has been conferred, it is not the sole criterion but should be "in the mix" of other considerations. It is a fatal mistake for a school district to declare that a child is ineligible solely because he or she is receiving passing grades. Educational Benefits: The court's own language serves to explain this prong of the Rowley test with the greatest skill:
Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from education. The statutory definition of "free appropriate public education," in addition to requiring the States to provide each child with "specially designed instruction," expressly requires the provision of "such…supportive services…as may be required to assist a handicapped child to benefit from special education." §1401(17). We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. [FN23] (458 US 176 at 200, emphasis added).
And this analysis is extended to the provision of a FAPE for eligible children:
When the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a "free appropriate public education," we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the
58
grade levels used in the State's regular education, and must comport with the child's IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. [FN26] (458 US 176 at 202, emphasis added.)
The question of how to deal with students who are not capable of obtaining passing grades under any circumstances is not clearly answered by the Supreme Court in Rowley. However, the footnotes make reference to the required full continuum of alternative settings, and the need for some students to be placed in settings other than the mainstream. It is clear, especially in light of decisional case law subsequent to Rowley, that when a child is placed in a more restrictive setting, the decision must be driven by the unique need of the student and not by administrative convenience or other factors (see, e.g., Beth B. v. Mark VanClay and School District #65 (Federal Appellate Case Decided March 5, 2002) [2002 WL 341017, 36 IDELR 121 (7th Cir.).
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Selected Case Footnotes (Emphasis is Added) (73 L.Ed.2d 710)
25. We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a "free appropriate public education." In this case, however, we find Amy's academic progress, when considered with the special services and professional consideration accorded by the Furnace Woods School administrators, to be dispositive.
But see footnote 23! (73 L.Ed.2d 712)
28. When the handicapped child is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit. See Part III, supra.
This note is from the Dissent: Justices White, Brennan, and Marshall
1. The Court's opinion relies heavily on the statement, which occurs throughout the legislative history, that, at the time of enactment, one million of the roughly eight million handicapped children in the United States were excluded entirely from the public school system and more than half were receiving an inappropriate education. See, e.g., ante, at 189, 195, 196-197, 73 L Ed 2d, at 701, 705, 706. But this statement was often likened to statements urging equal educational opportunity. See, e.g., 121 Cong Rec 19502 (1975) (remarks of Sen. Cranston); id., at 23702 (remarks of Rep. Brademas). That is, Congress wanted not only to bring handicapped children into the schoolhouse, but also to benefit them once they had entered.
(Footnote 23) THIS NOTE devotes substantial space and time to the concept of self-sufficiency and this should be
"With proper education services, many would be able to become productive citizens, contributing to society instead of being forced to remain burdens. Others, through such services, would increase their independence,
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pointed out to any hearing officer, administrator, or attorney who insists that the opinion stands for the rigid proposition that "any" satisfactory grade record will do. Moreover, the presence of 'relaxed' grading standards (i.e., giving passing grades just for trying) does not assist the pupil in the permanent and long-range development of self-sufficiency skills.
thus reducing their dependence on society." S. Rep, at 9. See also HR Rep, at 11. Similarly, one of the principal Senate sponsors of the Act stated that "providing appropriate educational services now means that many of these individuals will be able to become a contributing part of our society, and they will not have to depend on subsistence payments from public funds." 121 Cong Rec 19492 (1975) (remarks of Sen. Williams). See also id., at 25541 (remarks of Rep. Harkin); id., at 37024-37025 (remarks of Rep. Brademas); id., at 37027 (remarks of Rep. Gude); id., at 37410 (remarks of Sen. Randolph); id., at 37416 (remarks of Sen. Williams). The desire to provide handicapped children with an attainable degree of personal independence obviously anticipated that state educational programs would confer educational benefits upon such children. But at the same time, the goal of achieving some degrees of self-sufficiency in most cases is a good deal more modest than the potential maximizing goal adopted by the lower courts. Despite its frequent mention, we cannot conclude, as did the dissent in the Court of Appeals, that self-sufficiency was itself the substantive standard, which Congress imposed upon the States. Because many mildly handicapped children will achieve self-sufficiency without state assistance while personal independence for severely handicapped may be an unreachable goal, "self-sufficiency" as a substantive standard is at once an inadequate protection and an overly demanding requirement. We thus view these references in the legislative history as evidence of Congress' intention that the services provided handicapped children be educationally beneficial, whatever the nature or severity of their handicap.
(Footnote 21) The second recognition herein that
The use of "appropriate" in the language of the Act, although by no means definitive, suggests that Congress used the word as much to describe the
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some "mainstream" settings, while less restrictive, are simply not appropriate for the education of some handicapped children. Again in opposition to reflexive LRE and "full inclusion" arguments used by management attorneys.
settings in which handicapped children should be educated as to prescribe the substantive content or supportive services of their education. For example, § 1412(5) requires that handicapped children be educated in classrooms with non-handicapped children "to the maximum extent appropriate." Similarly, § 1401(19) provides that, "whenever appropriate," handicapped children should attend and participate in the meeting at which their IEP is drafted. In addition, the definition of "free appropriate public education" itself states that instruction given handicapped children should be at an "appropriate preschool, elementary, or secondary school" level. § 1401(18)(C). The Act's use of the word "appropriate" thus seems to reflect Congress' recognition that some settings simply are not suitable environments for the participation of some handicapped children.
73 L.Ed.2d 708 – from the body of the opinion: This Note is one of the most significant parts of the opinion, as it explains what the Court IS and IS NOT deciding. While "self-sufficiency" is not the exclusive factor, it is an important factor in determining if an educational benefit has been "conferred." (73 L.Ed.2d 709)
We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. 23
23. This view is supported by the congressional intention, frequently expressed in the legislative history that handicapped children be enabled to achieve a reasonable degree of self-sufficiency. After referring to statistics showing that many handicapped children were excluded from public education, the Senate Report states: "The long range implications of these statistics are that public agencies and taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain such persons as dependents and in a minimally acceptable lifestyle."
The language of "educational benefit." The root of this language
15. The only substantive standard, which can be implied from these cases, comports with the
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is not just that the child must receive "any" benefit: the benefit must be "received" within the context of the child's unique needs, not the needs of the agency. The origin of the language is explained in this note – as a way of providing handicapped children with an inviolable access to educational services, which provision this court, reads very strictly (see Honig v. Doe, 484 U.S. 305, 308 (1988)). (73 L.Ed.2d 704)
standard implicit in the Act. PARC states that each child must receive "access to a free public program of education and training appropriate to his learning capabilities," 334 F. Supp, at 1258 (emphasis added), and that further state action is required when it appears that "the needs of the mentally retarded child are not being adequately served," id., at 1266 (emphasis added). Mills also speaks in terms of "adequate" educational services, 348 F Supp, at 878, and sets a realistic standard of providing some educational services to each child when every need cannot be met. The inadequacies of the District of Columbia Public School System whether occasioned by insufficient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the 'exceptional' or handicapped child than on the normal child." Id., at 876.
While the EHA does not mandate 'maximization' of benefits under this decision, note that settled decisional case law provides that states which choose to grant greater rights than the Federal mandate requires must do so uniformly – and the state standard will in such cases prevail. (73 L.Ed.2d 706)
21. In seeking to read more into the Act than its language or legislative history will permit, the United States focuses upon the word "appropriate," arguing that "the statutory definitions do not adequately explain what [it means]." Brief for United States as Amicus Curiae 13. Whatever Congress meant by an "appropriate" education, it is clear that it did not mean a potential maximizing education. The term as used in reference to educating the handicapped appears to have originated in the PARC decision, where the District Court required that handicapped children be provided with "education and training appropriate to [their] learning capabilities." 334 F Supp, at 1258. The word appears again in the Mills decision, the District Court at one point referring to the need for "an appropriate education program," 348 F Supp, at 879, and at another point speaking of a "suitable publicly supported education," id., at 878. Both cases also refer to the need for an "adequate" education. See 334 F Supp, at 1266; 348 F Supp, at 878.
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Independence and Self Sufficiency: At 20 U.S.C. 1400 (c)5(E)ii, it is indicated that 20 years of research under the old IDEA has demonstrated that training people through high quality intensive professional development ensures that these personnel have the skills to enable children to be prepared to lead productive, independent, adult lives to the maximum extent possible. This language in the "purposes" clause of Rowley appears to provide a potential argument that the Rowley standard of requiring districts to provide "adequate" services might have been elevated. In addition, at Section 1400(d), under purposes (1)A, one of the purposes of the IDEA is to enable individuals to meet their unique needs and prepare them for employment and independent living. This is reminiscent of the footnote discussion in the Rowley case. It is clear that one of the purposes of the Act is to prepare students for independence to the extent that their abilities permit. Conclusion: Special educators should take special notice of the Rowley case, as it is still good law and it acts as the blueprint for all cases to follow. The two Rowley questions emphasizing procedural compliance and the benefits of the IEP should be committed to memory. Finally, the focus of the decision on what is “appropriate” for special education students should be given special emphasis, especially in light of the social emphasis on so-called “inclusion” in recent years.
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BROOKE R. WHITTED WHITTED, CLEARY & TAKIFF LLC
Suite 303 3000 Dundee Road
Northbrook, Illinois 60062 847/564-8662
847/564-8419 (FAX) [email protected]
www.wct-law.com
The K.L. Case: Is Rowley Still
the Law of the Land?
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The K.L. Case: Is Rowley still the Law of the Land?
By Brooke R. Whitted
There have been a number of bulletins about the K.L. matter2, a recent Washington State case in the Federal District Court there. K.L. is seventeen years old, of average intelligence, and is challenged by severe learning disabilities in reading and writing (otherwise known as dyslexia). She was in public school through grade 3, private school through grade 5, and again in public school beginning in grade 6. Prior to her 10th grade year, the parents enrolled her at the Landmark School, a very well regarded school for learning disabled children in Pride’s Crossing, MA. The parents, claim they were denied adequate IEP participation and further, that the IEPs were not IDEA compliant, thereby denying their daughter a Free Appropriate Public Education (“FAPE”). At the end of grade 8, K.L. scored in the second percentile on her Iowa tests and failed the Washington State Assessment in reading. A June 2003 report was prepared by the school district, reflected all of the girl’s severe difficulties, and was never shared with the parents. This report said the girl accomplished none of her writing objectives and only two of four objectives in reading. Yet the 9th grade IEP was essentially unchanged from the 8th grade IEP. She accomplished none of her writing objectives, and her reluctance to learn increased while her self-esteem decreased. The 10th grade IEP proposed special education instruction in reading, writing, math, and study skills. However, there was no time allotted to each area and there were no instructional methodologies specified. At the IEP, there was no general education teacher present. The District then paid for an independent evaluation by a neuropsychologist. This psychologist found that there were severe phonological (sound to letter) and morphological (word families) deficits. These deficits, she recommended, required intensive instruction. The evaluator also said that the student had a “mood disorder.” The recommendation in the independent evaluator’s report was Landmark School and soon thereafter, the parents placed her there. In September of 2004, the IEP team met with the evaluator and agreed with some of her conclusions but not the Landmark recommendation. In November of 2004 the school district again funded an evaluation by a team from the local children’s hospital. The psychologist from this new evaluation team said there was no language based learning disability and the psychiatrist said there was no mood disorder. In March 2005, the District held a “pre-meeting” prior to the IEP without the parents. Then the IEP was convened and that team adopted some of the recommendations 2 K.L. and M.L. et. al. v. Washington Island, Washington School District, #C06-494P decided on 12-08-06 in the U.S. District Court of the Western District of Washington at Seattle.
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of the parent’s evaluator and all of the evaluative findings of the Children’s Hospital team. Some “accommodations” were listed but again, no methodology or time allocation for each instructional area were specified. At this point, the parents requested an administrative special education hearing, which consisted of twelve hearing days. The parents lost on all points and appealed to the District Court. The court characterized the Administrative Law Judge’s (hereafter “ALJ”) findings as “thorough but not careful.” The court observed that the ALJ “misunderstood the intention of IDEA, misapplied the statute and failed to uphold its requirements.” The Judge then cited a 6th Circuit case, Deal v. Hamilton County,3 stating “the intent of Congress has been to require a program providing a meaningful educational benefit toward the goal of self sufficiency.” The Judge’s first holding in the K.L. case was that the IEPs that were drafted by the school district failed to focus on self-sufficiency and that this was therefore a denial of FAPE. In her analysis, the Judge stated that the Education for All Handicapped Children Act passed in 1975, and up to about ten years ago, was intended to provide mere “access” to special education. However, in 1997, Congress was “satisfied that the goal of ‘access’” had been reached and restated a new intent of the law:4 Equality of opportunity Full participation Independent living Economic self-sufficiency Since the Rowley5 case preceded the 1997 amendments, the ALJ’s reliance on it was “misplaced.” The court held that Rowley has been superseded by later legislation and further held that any citation to pre-1997 case law on special education is “suspect.” The court went on to quote directly from the regulations:
“…IEPs for children must… focus on providing instruction and experiences that enable the child to prepare herself for later educational experiences and for post school activities, including formal education, if appropriate, employment and independent living.”6
Consequently, according to the judge, the ALJ has “completely missed the point.” Amusingly, the court then quotes the dictionary definition of “meaningful: (emphasis is the Court’s)” 3 Deal v. Hamilton County Bd. of Educ., 392 F.3d 840(6th Cir. 2004) 4 20 U.S.C.§1400(c)1 5 Bd. of Educ. of the Hendrick Hudson Central School Dist., Westchester County v. Rowley, 458 U.S. 176 (1982) 6 64 Federal Regulations 12470, 12474
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1. “Having meaning, function or purpose;” 2. “Fraught with meaning, significant.” The judge went on to hold that providing a “meaningful educational benefit” under IDEA required programs and results that reflect the act’s emphasis on preparation for self-sufficiency. The court, in further dicta7 says the language from Rowley utilized by the ALJ is not the language or standard of the 1997 IDEA, which is not concerned with mere “access” that is “more than de minimis.” The court says that the school district and the ALJ have “set the bar too low,” and goes on to point out that it is not enough to simply “escort” a student through the school system without increasing skill levels. For example, as in this case, having someone read to the student does not fulfill the mandated self-sufficiency goal. In fact, the District had a dismal outlook for this young girl. They claimed (with no citation to expert authority) that so-called “accommodations” were a lifelong requirement for “incurable diseases” like dyslexia. The Federal judge rejected this claim and ordered that the ALJ write a corrected opinion and mandated that she must consider the progress the student at the Landmark School8 in assessing (a) whether the prior IEPs were adequately developed and implemented and (b) what an appropriate placement would be. The court also points out that some compensatory education is in order here, as well as an award of attorney fees. It should be noted that in a phone conversation with Howard Powers, the lawyer who brought this Washington case, he indicated that he was extremely careful not to ask the court to overrule the Rowley case. He wanted the analysis of Rowley to stay in place but he wanted the “floor of opportunity” raised. He felt that the district court judge accomplished this goal. The Judge, in assisting the ALJ on remand, further went on to hold that the IEPs did not comply with IDEA. Furthermore, the statute required the District to provide staff training in this case: “The language [of IDEA] speaks to attainment of goals set for each child, not merely progress toward them.” Thus, IEPs must contain: Time for each service; Methodology; Indications whether goals are attained; A way of measuring self-sufficiency. The conclusion, taken directly from the court case, is as follows:
The IDEA calls for disability education programs which guide the student toward post education independence and
7 This is a discussion by a court that is not necessarily part of the formal holding but supports the holding. 8 Progress at the private school selected by parents is allowed to be considered in determining whether the recommendation of the school is appropriate. See, for example, Anne Marie Angevine v. Andrew Jenkins, 752 F. Supp. 24 (DDC 1990)
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self sufficiency. In pursuit of that goal, students such as K.L. must receive educational opportunities which significantly advance them toward that end. The IEPs developed in accordance with this scheme must specifically delineate the methodologies to be used to achieve these goals and the time to be allotted to each of the services employed to that end and further must be geared toward the achievement of enumerated goals. Where a previous years IEP has fallen short of the marks it set, the succeeding IEPs must identify the means to advance the student further. (emphasis added)
There are certain logical questions that follow from a close reading of this case. However, it should also be noted that Mr. Powers, again in a recent conversation, advised that the court will soon issue an amended opinion, as the issue of reimbursement for the cost of Landmark was inadvertently omitted form the original decision. The parties are now awaiting the amended opinion and Mr. Powers states that it is likely the case will be appealed by the school district. Questions: 1. Do we still ask the two Rowley questions?
A. Yes. Given Mr. Powers’ statements about not wanting Rowley overruled and given the fact that this is a District Court opinion and not in the appellate system yet. The Rowley case, a U.S. Supreme Court case, is still good law.
2. What is the extent of parental involvement?
A. Parental involvement must be maximized. The Rowley case clearly indicated this in 1982 and subsequent decisions, legislative changes, and the most recent 2004 amendments all agree.
3. How is “educational benefit” defined? A. This term is still defined by the Rowley case, with, of course, the opportunity to cite this new Washington case. However, until the K.L. case makes it to the appellate level, it likely carries less weight than any state appellate, federal appellate, or U.S. Supreme Court case. 4. Do school districts have to provide the “best” educational setting?
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A. No. Rowley is still good law on this issue and as long as they provide an “adequate” setting, they are in compliance. However, in the transition area, there is a good argument that the 2004 amendments require maximization.
5. Has K.L. changed the way at parents and educators must look at special education situation? A. Only slightly. The Rowley analysis, as indicated above, is still a good analysis. The Washington case simply starts a judicial conversation about where the floor of opportunity should be under the traditional Rowley analysis. The attorney in the Washington case has already indicated that he was very careful not to ask the court to overrule Rowley, but simply to raise the floor of opportunity under the “educational benefit” definition.
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BROOKE R. WHITTED WHITTED, CLEARY & TAKIFF LLC
3000 Dundee Road Suite 303
Northbrook, IL 60062 Phone: 847-564-8662
Fax: 847-564-8419 Website: www.wct-law.com
Email: [email protected]
IEPs and the
Attendance of Regular Education
Teachers
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M E M O R A N D U M To: Whitted, Cleary & Takiff Clients From: Lara Cleary; Brooke Whitted Date: December 12, 2007 Re: Requirements of Regular Education Teachers’ Participation at IEP Meetings ================================================================== The requirement that regular education teachers be present at IEP meetings is a fairly new requirement in special education practice. This memorandum is designed to provide an overview of the requirement and provide a brief summary of the necessary compliance. One common area that school districts struggle with is the question of which regular education teacher to invite when the child participates or will be participating in a variety of mainstream regular education classes. This information is discussed in greater detail. The other common question is in what aspects of the IEP formulation should the regular education teacher participate.
Overview of Regulatory Language
1. Federal Regulations
The IDEA federal regulations at §300.344(a)(2) and 300.346(d) repeat the statutory provisions regarding the role of the regular education teacher in developing a child’s IEP. Those provisions read as follows:
§300.344 IEP Team
(a) General. The public agency shall ensure that the IEP team for each child with a disability includes --
(2) At least one regular education teacher of the child (if the
child is, or may be, participating in the regular education environment);
§300.346 Development, Review, and Revision of IEP
(d) Requirement with respect to regular education teacher. The regular
education teacher of a child with a disability, as a member of the IEP team, must, to the extent appropriate, participate in the development,
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review, and revision of the child’s IEP, including assisting in the determination of --
(1) Appropriate positive behavioral interventions and
strategies for the child; and (2) Supplementary aids and services, program modifications
or supports for school personnel that will be provided for the child, consistent with§300.347(a)(3)
OSEP Interpretation
In addition, Appendix A to Part 300, Notice of Interpretation, provides
additional clarification to the regular education requirement at questions 23, 24, 25, and 26. These questions address which regular education teachers should be present as well as the role of that teacher at the meeting. The specific provision which addresses which teacher should be present if a child has a variety of regular education teachers is underlined at question 26.
Question No. 23:
For a child with a disability being considered for initial provision of special education and related services, which teacher or teachers should attend the IEP meeting?
A child’s IEP team must include at least one of the child’s regular education teachers (if the child is, or may be participating in the regular education environment) and at least one of the child’s special education teachers, or, if appropriate, at least one of the child’s special education providers (§300.344(a)(2) and (3)).
Each IEP must include a statement of the present levels of educational
performance, including a statement of how the child’s disability affects the child’s involvement and progress in the general curriculum (§300.347(a)(1)). At least one regular education teacher is a required member of the IEP team of a child who is, or may be, participating in the regular educational environment, regardless of the extent of that participation.
The requirements of §300.344(a)(3) can be met by either: (1) a special
education teacher of the child; or (2) another special education provider of the child, such as a speech pathologist, physical or occupational therapist, etc., if the related service consists of specially designed instruction and is considered special education under applicable state standards.
Sometimes more than one meeting is necessary in order to finalize a
child’s IEP. In this process, if the special education teacher or special education provider who will be working with the child is identified, it would be useful to have that teacher or provider participate in the meeting with the parents and other members of the IEP team in finalizing the IEP. If this is not possible, the public agency must ensure that the teacher or provider has access to the child’s IEP as soon as possible after it is finalized and before beginning to work with the child.
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Further, (consistent with §300.342(b)), the public agency must ensure that each regular education teacher, special education teacher, related services provider and other service provider of an eligible child under this part (1) has access to the child’s IEP, and (2) is informed of his or her specific responsibilities related to implementing the IEP, and of the specific accommodations, modifications, and supports that must be provided to the child in accordance with the IEP. This requirement is crucial to ensuring that each child receives FAPE in accordance with his or her IEP, and that the IEP is appropriately and effectively implemented.
Question No. 24:
What is the role of a regular education teacher in the development, review and revision of the IEP for a child who is, or may be, participating in the regular education environment?
As required by §300.344(a)(2), the IEP team for a child with a disability must include at least one regular education teacher of the child if the child is, or may be, participating in the regular education environment. Section 300.346(d) further specifies that the regular education teacher of a child with a disability, as a member of the IEP team, must, to the extent appropriate, participate in the development, review, and revision of the child’s IEP, including assisting in -- (1) the determination of appropriate positive behavioral interventions and strategies for the child; and (2) the determination of supplementary aids and services, program modifications, and supports for school personnel that will be provided for the child, consistent with 300.347(a)(3) (§300.344(d)).
Thus, while a regular education teacher must be a member of the IEP team if the
child is, or may be, participating in the regular education environment, the teacher need not (depending upon the child’s needs and the purpose of the specific IEP team meeting) be required to participate in all decisions made as part of the meeting or to be present throughout the entire meeting or attend every meeting. For example, the regular education teacher who is a member of the IEP team must participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child’s involvement and progress in the general curriculum and participation in the regular education environment.
Depending upon the specific circumstances, however, it may not be necessary for
the regular education teacher to participate in discussions and decisions regarding, for example, the physical therapy needs of the child, if the teacher is not responsible for implementing that portion of the child’s IEP.
In determining the extent of the regular education teacher’s participation at IEP
meetings, public agencies and parents should discuss and try to reach agreement on whether the child’s regular education teacher that is a member of the IEP team should be present at a particular IEP meeting, and if so, for what period of time. The extent to which it would be appropriate for the regular education teacher member of the IEP team to participate in IEP meetings must be decided on a case-by-case basis.
Question No. 25:
If a child with a disability attends several regular classes, must all of the child’s regular education teachers be members of the child’s IEP team?
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No. The IEP team need not include more than one regular education teacher of
the child. If the participation of more than one regular education teacher would be beneficial to the child’s success in school (e.g., in terms of enhancing the child’s participation in the general curriculum), it would be appropriate for them to attend the meeting.
Question No. 26:
How should a public agency determine which regular education teacher and special education teacher will be members of the IEP team for a particular child with a disability?
The regular education teacher who serves as a member of a child’s IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child.
If the child has more than one regular education teacher responsible for carrying
out a portion of the IEP, the LEA may designate which teacher or teachers will serve as IEP team member(s), taking into account the best interest of the child.
In a situation in which not all of the child’s regular education teachers are
members of the child’s IEP team, the LEA is strongly encouraged to seek input from the teachers who will not be attending. In addition, (consistent with §300.342(b)), the LEA must ensure that each regular education teacher (as well as each special education teacher, related services provider, and other service provider) of an eligible child under this part (1) has access to the child’s IEP, and (2) is informed of his or her specific responsibilities related to implementing the IEP, and of the specific accommodations, modifications and supports that must be provided to the child in accordance with the IEP.
In the case of a child whose behavior impedes the learning of the child or others,
the LEA is encouraged to have a regular education teacher or other person knowledgeable about positive behavior strategies at the IEP meeting. This is especially important if the regular education teacher is expected to carry out portions of the IEP. (Emphasis added.)
Similarly, the special education teacher or provider of the child who is a member
of the child’s IEP team should be the person who is, or will be, responsible for implementing the IEP. If, for example, the child’s disability is a speech impairment, the special education teacher on the IEP team could be the speech-language pathologist.
2. Illinois Regulations
Additionally, the new Illinois special education rules, 23 Ill.Admin.Code 226.210 (b), states that the IEP team must include at least one regular education teacher “if the child is participating or may participate in the regular education environment.” (Emphasis added) In addition, 226.210(b)(1), elaborates on this requirement by requiring that the regular education teacher be one who “is or may be responsible for implementing a
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portion of the IEP.” Finally, 226.210(b)(1)(A) & (B), basically mimic the federal regulations, and indicates that the “responsibilities” of the regular education teacher “shall” include assisting in:
(A) the determination of appropriate behavioral
interventions and strategies for the child; and (B) the identification of supplementary aids and services,
program modifications, and supports for school personnel, consistent with 34 CFR 300.347(a)(3).
Finally, 23 Ill.Admin.Code 226.210 (b) (3), which is a regulation apparently clarifying the mandate at 226.210 (b) that the IEP team include a regular education teacher, specifically states that for a child of less than school age, the team shall include an individual qualified to teach preschool children. This can be interpreted to mean that the regular education teacher should be one who is qualified to teach preschool children. Speech & Language Only – Special Rules Question # 24 (above) of Appendix A, states that a regular education teacher need not participate in all decisions made at an IEP meeting, or even attend all meetings, and further states:
Depending upon the specific circumstances, however, it may not be necessary for the regular education teacher to participate in discussions and decisions regarding, for example, the physical therapy needs of the child, if the teacher is not responsible for implementing that portion of the child’s IEP.
Thus, it is our position that for a child who solely receives speech-language services and no regular education teacher is responsible for providing any part of that child’s IEP, the team may not always be required to include a regular education teacher. In addition 226.210 (c) states that while the team must include a special education teacher, if the child is receiving only speech and language services, the speech and language pathologist shall fulfill this role.
Summary
While the regulations do not provide specific guidance regarding exactly which of a child’s teachers must be in attendance for a child with more than one regular education teacher, a good rule of thumb is to invite a teacher who is:
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(1) One of the child’s academic subject teachers; (2) Knowledgeable about the specific child; (3) Capable of providing information regarding the child’s regular
education needs, including the child’s ability for mainstreaming, accommodations, modifications, and behavior intervention strategies.
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Client Alert To: Whitted Cleary & Takiff Clients From: Brooke R. Whitted and Lara A. Cleary Date: April 5, 2005 (updated July 20, 2006) Re: IDEA Re-Authorization
The new Individuals with Disabilities Education Improvement Act of 2004 (“IDEIA 2004”) was signed into law by the President on December 3, 2004. The Act went into effect on July 1, 2005, with the exception of a few sections9 which went into effect immediately. A full version of the IDEA, with changes highlighted, can be found at http://www.copaa.net/IDEA/IDEA97-04COMP.pdf. To date, both the U.S. Department of Education and the Illinois State Board of Education have promulgated draft regulations in response to the reauthorization. Both are in review session. We won’t likely see a final version of the Illinois regulations until the final federal regulations are issued A summary of the most significant changes in IDEIA follows.
9 These sections are highlighted in the following pages.
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SUMMARY OF IDEA 2004 CHANGES
Section Change Impact Purpose: (20 U.S.C. 1400 § 601)
Adds language “to the maximum extent possible” in several sections of the purpose of IDEA.
Congress has changed the standard for special education students from merely providing “appropriate” services to providing “maximum” services. However, it should be noted that states are still only mandated to provide the current standard of “Free and Appropriate Public Education” (“FAPE”)
Definitions: (20 U.SC. 1400 § 602) “Parent”
Adds language to include foster parents and “or other relative with whom the child lives or who is legally responsible for the child’s welfare…”
Releasing information to “other relatives” of a child could be a disaster under current state confidentiality laws. Districts will have to be diligent to ensure the information they are releasing to “other family members” who claim to be responsible for the child are in fact within all federal and state exceptions.
Pilot Paperwork Reduction Project: (20 U.SC. 1400 § 609)
Adds text to allow the U.S. Department of Education to “grant waivers of statutory requirements of, or regulatory requirements relating to, Part B for a period of time not to exceed 4 years with respect to not more than 15 states based on proposal submitted by State to reduce excessive paperwork and non-instructional time burdens that do not assist in improving educational and functional results for children with disabilities.”
Should Illinois be one of the 15 states involved in this pilot program, it is difficult to imagine how it will be possible to decrease the amount of paperwork related to special education while still preserving procedural safeguards. (continued on next page)
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Section Change Impact Pilot Paperwork Reduction Project: (20 U.SC. 1400 § 609) (cont’d)
Likely the only true “paperwork reduction” is the change in when a district must provide the written notification of procedural safeguards to parents – which is upon the initial referral for special education, one time per year, upon the first occurrence of a due process request filing, and upon the request of the parent.
Related Services: (20 U.SC. 1400 § 602(26))
Changed previous text of “school health services” to “school nurse services.” Also added “interpreting services,” and specifically excluded “a medical device that is surgically implanted, or the replacement of such a device.”
The exclusion of “a medical device that is surgically implanted” is thought to relate to Cochlear implants, which is a field of special education litigation that has increased significantly in the last few years. Much of the current case law requires school districts to pay for the mapping10 of a child’s Cochlear implant, not the implantation itself.
Child Find Requirements: 20 U.SC. 1400 § 612(a)(1)(C)
Adds new language stating that districts are now required to provide child find servcies for homeless children and children who are wards of the state. Also provides that districts are now responsible for “child find” requirements for all private schools in their geographic area, and that they must meet with private school employees “throughout the year” to discuss with these representatives “types of services” “how such services will be appropriated if funds are insufficient to serve all children,” and “how and when these decisions will be made.” (continued on next page)
This new language regarding child find requirements suggests that local school districts have to pay for some services for private school children in their area, despite the fact that the child’s parents are not residents of that school district. Current law in Illinois states that the local school district of a child in a private placement does have to serve these children, however the school district in which their parents reside has to pay for those servcies. It will be interesting to see how this affects current residency law.
10 The “mapping” of a cochlear implant is a procedure often conducted by a child’s audiologist which sets the sound parameters on each electrode at the appropriate, comfortable levels as indicated by the recipient. This procedure is required to be performed for children with Cochlear implants at least annually, with more visits needed immediately after implantation.
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Section Change Impact Child Find Requirements: 20 U.SC. 1400 § 612(a)(1)(C) (cont’d)
Districts also are required to submit a form to ISBE11 that the private school administrator has signed indicating their child find requirements have been satisfied. If a private school is not satisfied with the services the local school district is offering, they are allowed to file a complaint to the State educational agency.
See page 3
Early Intervening Services: 20 U.SC. 1400 § 613(a)(9)
States that school districts can take up to 15% (as opposed to the 5% allowed previously) of Part B special education funds “to develop and implement coordinated, early intervening services” for children K-12 who have not been identified for services but who need additional academic and behavioral support to succeed in a general education environment. Also states these funds can be used for professional development, educational and behavioral evaluations, services and supports.
11 Despite Congress’ statement that one of the goals for the 2004 reauthorization was to decrease paperwork requirements for districts, this is the first of twelve new paperwork requirements for districts. A list of these new paperwork requirements is attached.
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Section Change Impact Teacher Certification: 20 U.S.C. 1400 § 612(a)(14)(C)
States that all teachers must meet the “highly qualified” requirements of the No Child Left Behind Act (“NCLB”)12 and must hold at least a bachelor’s degree.
While most school districts are already in the process of changing their teacher requirements due to NCLB, this most significantly impacts school districts who have opted out of NCLB. This now means that even those districts must comply with NCLB requirements for special education teachers.
Mandatory Medication: 20 U.SC. 1400 § 612(a)(25)
New language has been added which specifically prohibits school districts from refusing educational services to parents who choose not to medicate their children.
Parents of children with ADHD who choose not to medicate cannot be treated differently.
Timeline for Initial Case Study Evaluation: (“CSE”) 20 U.SC. 1400 § 614(a)(1)(C)(i)(I)
The new section states that school districts must complete CSE’s within 60 calendar days, however this section does provide that states may utilize their own timelines if they have a timeline.
Illinois rules state that school districts have 60 school days to complete CSEs. This should apply, however most school districts are taking a conservative approach and doing CSEs in 60 calendar days. Draft Illinois regulations change the timeline to the federal 60 calendar days.
12 The requirements in Illinois to be considered “highly qualified” include for teachers to have a valid Illinois teaching certificate in the area of specialty (elementary, secondary or special education) and meet one of the following options: 1) pass the elementary/middle grades test or the content-area test for the area of teaching responsibility, 2) have a major or coursework “equivalent to a major,” 3) have a master’s degree or other advanced degree/credential, 4) be certified by the National Bard of for Professional Teaching Standards, and 5) Have an endorsement or its coursework equivalent that is sufficient to meet the Illinios maximum requirements for the area of teaching responsibility, have teaching experience in the area and have engaged in relevant continuing professional education.
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Section Change Impact Reevaluations: 20 U.SC. 1400 § 614(a)(2)(B)
New language has been added to the effect that reevaulations cannot be performed more than once a year unless the school and parent agree otherwise.
Eligibility Determination: 20 U.SC. 1400 § 614(a)(5)
Language added states that children are not to be found eligible for special education services if the determinate factor is a lack of appropriate instruction in the essential components of reading instruction (as defined in the NCLB13).
This additional language suggests children can no longer be found eligible for a Learning Disability if they have not previously specifically received reading instruction based on phonics. This is the first time that the IDEA has ever identified (and required school districts to use) specific teaching methodologies.
Eligibility Termination: 20 U.SC. 1400 § 614(c)(5)(B)(ii)
New language includes a provision that school districts have to provide “a summary of the child’s academic achievement and functional performance, including recommendations on how to assist the child in meeting… postsecondary goals,” upon discontinuing special education services for a child (including graduation and aging out of the special education system)
Many comments have expressed that this requirement may be troublesome. The proposed federal regulations so far provide no guidance as to the form or content of this summary and many school districts are struggling over what information should be contained. A model form, drafted by CEC, is available on the internet and is being adopted by many districts.
13 The “essential components of reading instruction” as defined in NCLB include: a) phonemic awareness, b) phonics; c) vocabulary developments, d) reading fluency, including oral reading skills, and e) reading comprehension strategies.
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Section Change Impact Specific Learning Disabilities Eligibility: 20 U.SC. 1400 § 614(b)(6)(A)
A school district is not required to take into consideration whether the child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation or mathematical reasoning. Instead, a school district “may” use a process that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures. (RTI – Response to Intervention)
This language dispels the belief that just because a child has a “severe discrepancy” between IQ scores in certain areas they are automatically found eligible for special education services under the LD category. The proposed Federal regulations appear to establish more specific criteria for LD eligibility, which may be helpful if these criteria remain in the final regulations.
IEPs: Multi-Year IEP Determination Pilot Program: (20 U.S.C. 1400 614(d)(5)(A)
Adds text to allow 15 states (which have yet to be identified) to develop “multi-year” IEPs (every three years) as opposed to the current annual reviews required by law. States must submit a proposal to the Federal government in order to be considered part of this program.
While this initially was shocking to parent attorneys and advocates, the language included in this section still requires parental consent before implementing a “multi-year” IEP. In addition, annual goals are still required for the IEP and “an annual review must be conducted to determine the child’s progress toward the annual goals.” If the child is not progressing toward the goals, then the IEP must be redrafted. The IEP must also be reviewed at the request of a parent. As such, it appears that this provision will have little to no impact on the current standards for IEPs, in districts where parents are adequately informed.
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Section Change Impact IEPs: Short term objectives: 20 U.SC. 1400 § 614(d)(1)(A)(i)(I)(cc)
This section omits the requirements for short-term goals, and instead states that IEPs must contain “a statement of measurable annual goals, including academic and functional goals…” Districts may use benchmarks or objectives however, objectives are still necessary for those students who are receiving alternative assessments.
It will be more difficult for parents and districts to prove definitively whether the child is meeting annual goals, as “measurable objectives” are no longer required. Also note that the present levels of performance statement is now called the present levels of “academic achievement and functional performance.” Note that neither the new statute nor the proposed regulations provide a definition of “functional performance.”
IEPs: Student progress: 20 U.SC. 1400 § 614(d)(1)(A)(i)(III)
New language discontinues the need for quarterly progress reports, and instead only issues a suggestion for the progress reports to be issued “concurrent with the issuance of report cards.”
While most Illinois elementary and high schools do issue progress reports and report cards more than once a year, a district could potentially only have an obligation to track a special education child’s progress toward goals annually. If more frequency is desired, it appears it will be the responsibility of the parents to request that it be written into the IEP that the district provide more frequent reports.
Section Change Impact
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IEPs: Transition Services: 20 U.SC. 1400 § 614(d)(1)(A)(i)(VIII)
The new language pushes the requirement for transition services planning from 14 to “beginning not later than the first IEP to be in effect when the child is 16…” It also requires the team to draft “appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate independent livings skills.” It also must list “the transition services (including courses of study) needed to assist the child in reaching those goals.”
This new language significantly increases the requirements for transition planning, but raises the age when the District has to begin the process. The current rules in Illinois still require the process to begin at age 14, but is likely to change per the draft regulations.
IEPs IEP Attendance and Excusal: 20 U.SC. 1400 § 614(d)(1)(C)(i), (ii) and (iii)
New language states that if a required IEP team member’s “area of curriculum or related services I not being modified or discussed in the meeting” and if the parent and district agree the attendance of a mandatory IEP participant is not necessary, then that member does not have to participate. Requires written agreement by the parent. In addition, even if the required team member’s “area of curriculum or related services” is being modified or discussed, that person may be excused “in whole or in part” from attending an IEP meeting if: 1) a parent agrees in writing, and 2) “the member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to that meeting.”
This might potentially mean that districts could have only one representative (the LEA representative) present at an IEP meeting as long as summary reports are provided by all other participants. Remember, an advance report by the absent participant will be required if the person’s area of curriculum or related services is at issue, and written parent agreement must always be obtained prior that individual’s excusal. Districts must be careful about excusing a regular education teacher’s participation, as the new IDEIA has strengthened the role of the regular education teacher at IEP meetings – requiring that teacher to help “determine the appropriate behavior interventions and strategies, and supplement aides and services that are necessary for their classrooms.” (§ 1414(d)(3)(C))
Section Change Impact
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Procedural Safeguards: Statute of Limitations: 20 U.SC. 1400 § 615(f)(3)(D)
This new language now assigns a uniform statute of limitations (two years before the date the parents or public agency “knew or should have known”) regarding IDEA cases.
Although it was never specifically included within Illinois’ rules and regulations, case law has affirmed that the statute of limitations is generally a two-year period, so not a real change for Illinois.
Due Process Complaint Notice and Amended Complaint Notice: 20 U.SC. 1400 § 615(f)(3)(B), (D) and (E) and 20 U.SC. 1400 § 615(o)
New language indicates that after a party files for due process, the party receiving the request has 15 days to object to the sufficiency of the request. If the receiving party does not object to the request, then it is “shall be deemed sufficient.” If the receiving party does object to the request, then the hearing officer assigned to the case will determine if the request meets legal requirements. This provision also states that the party filing the due process request may not raise additional issues other than those listed in the request, at hearing, unless the other party agrees. A parent may file an amended due process complaint only in two circumstances: 1) if the other party consents in writing, and 2) if the hearing officer grants permission. However, another new provision indicates that nothing precludes parents from filing a separate due process complaint for issues not listed on previous complaints.
When IDEA was originally created, the due process provision was created in order for parents to be able to represent their own children at hearing, so they did not have to pay for lawyers. With the addition of this language, it could be argued that a hearing officer could dismiss a due process complaint on its face without an opportunity for the parent to correct the complaint. While parents are allowed to file a separate complaint with new issues listed, they might not be savvy enough to properly word their complaint and could be left with no remedy. One impression of this provision is that it could lead to “full employment for lawyers.” The complaint noticed (due process request) must contain the child’s name and address, the school the child attends, a description of the problem alleged, including the facts of the situation, and a proposed resolution. A parent filing the request must send it to the school district superintendent and it is then the district’s responsibility to forward the request to the ISBE within 5 days for the appointment of a hearing officer.
Section Change Impact
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Response to Due Process Complaint: 20 U.SC. 1400 § 615(c)(2)(B)(ii)
Another provision has been added that once a party has received a due process request, they are required to answer or respond to the specific issues listed in that request within 10 days. ISBE has issued a guidance memo, which contains some information regarding the content of this notice. This memo is available on the ISBE website. If a hearing officer has been assigned, he or she must also receive a copy of the response. If a hearing officer has yet to be assigned, then it must also be sent to ISBE.
Important new ten-day timeline! It is unclear whether an IEP which addresses the issues in the complaint may suffice as a “response.”
Resolution Session: 20 U.SC. 1400 § 615(f)(1)(B)(ii)
After a district receives a request for due process, it is mandated to convene an “IEP meeting” to try to resolve the complaint within 15 days unless both parties agree to waive this meeting. The section further states that if a parent does not attend the meeting with an attorney, then the district’s attorney cannot be present at the meeting. This is not intended to be an IEP meeting (although it arguably may) but must include the parents, a district representative, and members of the IEP team that have “knowledge of the request.” (continued on next page)
It is believed that this provision was added to encourage resolution without the need for involvement of attorneys or hearing officers. This provision also brings into question whether parents will be able to bring nonlegal “advocates” with them (as opposed to attorneys) without the district being able to also be represented. The parties may agree to use the state mediation procedures in the place of a resolution session.
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Section Change Impact Resolution Session: 20 U.SC. 1400 § 615(f)(1)(B)(ii) (cont’d)
If both parties agree to hold the meeting and resolve the situation amicably, then this agreement will be considered a legally binding agreement between both parties. However, the agreement can be voided by either party within three days of execution. If both parties have not reached a settlement within 30 days after the due process request was filed, then the hearing timelines commence.
Currently, ISBE has taken the position that the 45-day due process timeline does not start until the 30-day “resolution session” timeline is exhausted, but a few Illinois hearing officers area already disagreeing. Thus, different hearing officers may utilize different timelines unless a court provides precedent.
Attorneys Fees: 20 U.SC. 1400 § 615(i)(3)(D)(ii)
A new provision has been added stating that a court may award attorney’s fees to a district “against the attorney of a parent” who: 1) files a complaint that is frivolous, unreasonable or without foundation and 2) who continues to litigate after the litigation clearly became frivolous, unreasonable, or without foundation. A district can also be awarded attorney’s fees from a parent or a parent’s attorney if the complaint was brought for “any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” The provision also states that “at the discretion of the state” attorney’s fees can be awarded for mediation, however they cannot be awarded for a lawyer’s attendance at a resolution session.
While this section first appeared shocking to most parents, it is believed that to prove a case is “frivolous, unreasonable or without foundation” will (as is now the case in all litigation) be extremely difficult. However, if a school district pursues a parent under this section, even if the parent wins, the resources utilized to defend the claim are unduly burdensome to most families.
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Section Change Impact Discipline: 20 U.SC. 1400 § 615(k)(1)(D)
This provision states that a special education child who is removed from his or her educational placement for more than 10 school days in one academic year must be provided FAPE and must also receive a functional behavioral assessment and behavior intervention services and modifications.
Manifestation Determination: 20 U.SC. 1400 § 615(k)(1)(E)
This provision poses new questions the IEP team must consider when determining whether a child’s behavior was or was not a manifestation of their disability: 1) If the conduct in question was caused by or had a direct and substantial relationship, to the child’s disability, or 2) if the conduct in question was the direct result of the school district’s failure to implement the IEP. (The previous questions were: 1) If a child’s disability impaired the ability of the child to understand the impact and the consequences of the behavior, and 2) if the child’s disability impaired the ability of the child to control the behavior)
It is believed the amended language makes it easier for a school district to determine that a child’s behavior was not a manifestation of his/her disability.
Determination that Behavior was a Manifestation: 20 U.SC. 1400 § 615(k)(1)(F)
This is a new section and states that if a district does find a child’s behavior to be related to his or her disability, then it is required to: 1) create and FBA and BIP for the child (if one was not already completed), 2) revise a child’s FBA and BIP if one was already completed and 3) return the child to his or her previous educational placement.
This new section offers parents the guarantee that if their child is suspended for more than 10 days in a year, that a FBA and BIP will be drafted.
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Section Change Impact 45-Day Removal: 20 U.SC. 1400 § 615(k)(1)(G) and (k)(1)(H)(2)
New language specifies that a child’s removal may now be implemented for 45 school days, as opposed to 45 calendar days. A third reason for removal of a child has also been added, which is for “inflict[ing] serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the school district.” The new code has also changed the parental appeals process for these 45-day removals. The new language now states the child’s placement will remain at the alternative placement during the pendency of the dispute. In addition, the timeline for completion of an expedited due process hearing to overturn the decision to remove the child has been extended. Formerly, the requirement was for the hearing and opinion to be completed within 15 calendar days of a hearing being requested by the parents. The new language changes this from 15 calendar to 30 school days.
Taking into consideration that a typical school year is approximately 180 school days, removal for 45 days constitutes about 25 percent of the school year. There will also be considerable debate regarding the language “serious bodily injury.” The section states that the definition is defined as it is in the U.S. criminal code (18 USC §1365(3)(h), which defines it as: “(A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.” From this definition, it appears that it will be difficult for school districts to define a child’s actions as “serious bodily injury,” however case law will have to determine what is considered “serious.” The new timeline set for “expedited” due process hearings is now more in favor of districts, since 30 school days translates to about 45 calendar days.
Section Change Impact
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Protections for Children Not Yet Eligible for Special Education and Related Services: 20 U.SC. 1400 § 615(k)(5)(C)
New language states that a school district is deemed to have “knowledge” that a child has a disability if, before the behavior occurred: 1) the parent of a child expressed concern, in writing, to the district, 2) the parent requested a CSE, or 3) a teacher of the child or other school district personnel expressed specific concerns about a pattern of behavior to the director of special education or “other supervisory personnel.”
New language has significantly restricted what is considered “reasonable notice” to the school district that a child may have had a disability. Former language would allow for a child’s “behavior or performance” to be sufficient notice, however the new language places added burden on the parents of a child who may have a disability to be well informed of their rights and assertively insure that concerns are brought to the school district prior to the child displaying behavior. Training is needed in this area. Also, a child may not be considered to be a “not yet eligible child” if the District had performed a CSE and an IEP and the parent refused consent for the initial placement.
Preschool Grants: 20 U.SC. 1400 § 635(c)
The new language now allows for states to have the option of creating a policy which would allow parents to choose to continue early intervention services “until such children… enter kindergarten,” as opposed to having the responsibility rest solely on the school district upon age three.
If Illinois chooses to create such a policy, then parents who choose these services will not be afforded the protections offered under IDEA for special education students until they are placed into kindergarten.
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WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road
Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8419
www.wct-law.com [email protected]
IS EDUCATION AT THE "HOME SCHOOL"
A FEDERAL MANDATE?
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LRE HOME SCHOOL NOT A MANDATE
Murray vs. Montrose County School District (Colorado) 51 F.3d 921; 1995 U.S. App. LEXIS 7567 (4/20/95) This case involved a twelve year old boy with multiple disabilities due to C.P: mental and physical problems, as well as speech difficulties. In 1987-88, Tyler was tested prior to entry into kindergarten classes and the neighborhood school at this time was not accessible, but a school ten miles further away was accessible. The neighborhood school served mild to moderately impaired pupils, the other served severe to profound populations. The MDC first determined the child's needs could be met at the neighborhood school and he spent K-1 in regular first grade there, with substantial services. In January, 1990, another MDC led to the recommendation that Tyler be sent to the other school, ten miles away - parents were opposed to this, as they wanted Tyler to be with his friends. It was, however, ultimately recommended, in a close vote, that Tyler attend the distant school due to "lack of accessibility" at the closer school. The Director of Special Education was the tiebreaker. It was undisputed that the IEP was appropriate, and that Tyler should spend most of his time outside of the regular classroom. A due process hearing was requested and this occurred in March 1991 - the holding was that the home school was appropriate. The district appealed, and the second level holding was that Tyler had not achieved any meaningful progress at the "home" school, thus reversing Level I and ordering placement at the distant school, per the original district recommendations. The administrative decision was challenged in district court by the parents, and this was affirmed. Parents appealed from dismissal of their federal claim. Tyler was at the home school for the entire relevant time period, and in 11/93, a MDC determined that his needs could be met there. The question of mootness was discussed, and rejected in part by the appellate court.
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COURT'S DISCUSSION Citing Rowley, the Court asks the two standard questions,14 then moves to LRE - and distinguishing 'mainstreaming' from 'inclusion,' the latter meaning to this court no alteration of the regular education class to accommodate the child. (Citing West Edlaw Reporter 88 Educ L. Rep. 541 article) and adding that Rowley does not give a standard for LRE analysis other than the statute itself. I. LRE ANALYSIS A. Discussion of the various LRE tests: - Daniel R.R. 874 F.2d 1036 (5th 1989): 1. Can education in regular class be achieved satisfactorily? a. Steps taken to accommodate? b. Will pupil benefit from regular education? c. What is the child's overall experience in regular
education? d. What is the effect on the classroom of the child's
presence in it? (874 F.2d at 1048-49) and noting that Greer allows cost
considerations (950 F.2d 697) - if education not achievable, then ask: 2. Has the school district mainstreamed to the maximum extent
appropriate? B. The DAN. R.R. test has been adopted by the 3rd, 5th, and 11th
federal appellate circuits, - below, the RONCKER test has been adopted, by the 4th, 6th, and 8th circuits (700 F.2d 1058-6th Cir.):
1. Are the "superior" services available at the self contained site transferable to the public school setting? (700 F.2d at 1063)
2. Consider these factors:
14 Has the District followed mandated procedures and is the IEP reasonably
calculated to confer an educational benefit?
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a. Benefits of special vs. regular education classroom. b. Whether child would be disruptive in regular education. c. Cost of putting child in regular classroom. C. Finally, the Ninth Circuit has a hybrid of both, a balancing test, as
established by the Holland case: 1. Educational benefits of full time regular education; 2. Non-academic benefits; 3. Effect of child on teacher and children; 4. Costs of mainstreaming child. (Sacramento v. Rachel H., 14 F.3d 1398, 1404) (1994) (the "Holland" case). II. STANDARD OF REVIEW The court then discussed the "modified de novo review standard" for IDEA cases - 1. Independent review of evidence 2. New evidence if necessary 3. "Due weight" to administrative level 4. Decide on preponderance standard ("more likely than not" -
51%). III. RATIONALE Here, the appellate court reviewed the district court's grant of the district's Motion for Summary Judgment - this case involves a single legal issue: whether LRE mandates a presumption in favor of the "neighborhood" school - and the court held that IT DOES NOT. In affirming the District Court in favor of the District, the Court said: 1. This interpretation "strains the plain meaning of the statute,"
which is silent on removal from neighborhood schools; 2. Regulations only express a preference which considerations
of appropriateness can cancel;
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3. The Court expressly disagrees with any of the Oberti court's language to the contrary;
4. The legislative history of IDEA does not come right out and
say anything in favor of "close to home" being a mandate. And note this language:
A school district accordingly is NOT obligated to fully explore supplemental aids and services before removing a child from a neighborhood school.
Here, there was never any objection concerning the extent to which Tyler was removed from regular education classrooms - only to removal from the "neighborhood" school. This was thus a narrow, single issue case.15
15 See Also: Urban by Urban v. Jefferson County School District R-1, (D.
Colo.) 12/3/94 Sparr, District Judge.
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Brooke R. Whitted WHITTED, CLEARY + TAKIFF, LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 Fax Email: [email protected]
Beth B.:
FAPE or LRE?
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MEMO To: Friends and Clients of Whitted, Cleary + Takiff, LLC From: Brooke R. Whitted, Lara A. Cleary Date: March 7, 2002 Re: Beth B. v. Mark VanClay and School District #65 (Federal Appellate Case Decided March 5, 2002) [2002 WL 341017, 36 IDELR 121 (7th Cir.)
I would like to alert you to a recent Seventh Circuit opinion, Beth B. v. Mark VanClay and School District #65. We have attempted to highlight the salient portions of the opinion which, in our opinion outlines a much more common sense reading of the Rowley case, i.e., it reads the least restrictive environment provision in a way that was intended by Congress. The history of this case is that the parents were desirous of mainstreaming their daughter at all costs, much as in the case of Light v. Parkway16. Their argument was that their daughter, who suffered from Rett Syndrome, was receiving "benefit in the mainstream” and therefore the school district was prohibited from changing her to a self contained placement. The Appellate Court disagreed with parents, stating that they had misread relevant legal provisions. In fact, the court said that Beth's parents…
confused the FAPE side of the coin with the LRE side. They contend that Beth's current placement satisfies the Rowley standard because she received an educational benefit at Lake Bluff Middle School. So long as the regular classroom confers "some educational benefit" to Beth, they argue, ……the school district cannot remove her from that setting. This language is misplaced. The Rowley holding applies only to the school district's responsibility to provide a FAPE – a requirement that analyzes the appropriateness of the district's placement – not the appropriateness of the ELS alternatives including the regular education classroom. (Emphasis added)
The court goes on to say that the preference for mainstreaming demands "a hard look and a careful analysis" of the education the student was receiving at the middle school. The parents rely on "misplaced language from Rowley" to argue that so long as she was receiving .
16 Light v. Parkway, 515 U.S. 1132 (1995)
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Memorandum Beth B. v. Mark VanClay and School District #65 Page 2 any benefit at all, her removal would "violate the LRE requirement." The court disagreed. It said that by applying this kind of reasoning to the LRE directive and arguing that the school district can't remove a student from the regular classroom if she receives any benefit there, the parents turn the "some educational benefit" language upside down. Instead of granting flexibility to educators, such a view places an extreme restriction on their authority and the deference they are owed pursuant to decisional case law. Essentially, such an approach would limit districts' authority to place any disabled children in separate special education settings. The court recognizes in this opinion that "neither Congress nor the Supreme Court intended such result." The court then incorporates the Rowley footnotes, wherein the U.S. Supreme Court says in footnotes four and twenty-one that Congress clearly recognized that some students would simply not be suitable for education in the mainstream.
Rowley started with common sense, but some of the decisions that have interpreted its LRE requirement in as in this case, have totally missed the point. The operational word in the LRE language is "appropriate," and that is an easy word to understand. The reasoning is as common sense as in the 8th Circuit Wayzata case, decided on August 3, 2001.17 In that case, the hearing officer held that the child needed to be in a "secure" residential setting and the school district appealed the decision. Yet, the Wayzata court held that the child's truancy and defiance of authority result from a genuine emotional disturbance rather than from a "purely moral failing," and therefore the child was eligible. Further, the Wayzata court held that if any problem prevents a child from receiving educational benefits, what difference does it make where the problem came from or whether it is "educational" or "cognitive" or not? The real question, according to that court was, Does the problem need to be addressed in order for the child to learn? And with regard to LRE, the court held that the Federal statute requires mainstreaming only to the maximum extent appropriate, not to the maximum extent possible (citing Burlington). Finally, with regard to the Beth B. case, a close look should be given to the repetitive language in the opinion that school authorities are better suited than Federal Judges to determine educational policy. The court systems are required, in their independent evaluation of evidence in individual cases, to give due deference to the results of the administrative proceedings, due to the greater expertise of the educators. Remember: the U.S. Supreme Court's inquires in Rowley prevail in all special education cases. If there has been no significant procedural violation, the decision-making of the educators receives due deference. If there has been a significant procedural violation which does harm to the student, the decisions by the educators then become suspect and subject to much closer scrutiny than if the procedural requirements had been followed. 17 Independent S.D. #284, Wayzata Area Schools, v. A.C. 2001 WL 872913 (8th Cir. 2001)
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MEMO
Enclosed please find an insurance claim case involving the underlying Beth B. case, General Star Indemnity Company v. Lake Bluff School District No. 65 et al. This is an Illinois appellate case which starts out by describing the underlying action which we are all familiar with. When the Beth B. case was active, the school board had a liability policy with plaintiffs and immediately notified them of a claim pursuant to the policy. The General Star Liability Company denied any obligation to provide a defense over a $50,000 cap because the action did not involve “damages” as required by the policy. In order to obtain a judicial interpretation of the policy’s terms, the insurance company filed an action for declaratory relief and Lake Bluff counterclaimed for declaratory and other relief. The court began by outlining the policy’s apparent exclusion for special education matters which were contained among a list of other potential matters under the general rubric of “non-monetary relief”. The trial court held that the insurance company owed the school district a defense in the underlying complaint as to the ADA and section 504 claims but not as to the IDEA claim beyond the $50,000 cap. Likewise, the insurance company was obligated to pay the district’s attorney fees and defense costs in federal district court and through the appellate level, but not the petition for certiorari before the U.S. Supreme Court (ultimately denied) which solely related to the IDEA claim. The appellate court determined that the issue was whether the family asked for relief that might bring their claims within full coverage of the policy and not under the damages limitation. The appellate court examined the decisional case law establishing relatively clearly that a duty to defend may not be based on “speculation” as to a court’s inherent power to award damages when none are requested. The appellate court then decided that the school district’s argument of a potential for an award of damages was without merit, and based on other decisions, concluded that the trial court committed a legal error by basing its grant of partial summary judgment in favor of the school district on the federal judge’s discretion to award monetary damages. The court, however, then went on to say that it had independent authority to determine whether the family in the underlying case sought relief that is catagorizable within the “damages” definition.
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You should be reminded here that the B. family lost on every in the underlying
case. Thus, the analysis is not what was obtained by the family but what they requested at the beginning of the case in their pleas for relief. The court even notes that the family would have been entitled to payments for reimbursement of the cost of medical evaluation and for the cost of independent clinician services. The question was whether the relief requested, not the relief obtained, fell within the damages definition.
In its discussion, the court states that when it is considering whether an insurer
has a duty to defend, both the underlying complaint’s allegations and the relevant policy provisions must be liberally construed in favor of the insured. The court then refers to the dictionary, (Webster’s and Black’s Law) and holds that the “reimbursement” sought by the family for doctor evaluations and clinician services would come directly through monetary payments, and that this was enough to bring it within the “damages” definition and therefore outside of the exclusionary language of the policy. Other cases were distinguished as concerning solely injunctive relief while the IDEA claim for reimbursement in the Beth B. case fell within the “liberally construed” language of contract interpretation in favor of the insured. Thus, the school district received an appellate court decision in its favor with full coverage of defense costs outside of the cap on damages. I enclose a full copy of this case for your review.
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BROOKE R. WHITTED WHITTED, CLEARY & TAKIFF LLC
Suite 303 3000 Dundee Road
Northbrook, Illinois 60062 847/564-8662
847/564-8419 (FAX) [email protected]
www.wct-law.com
The Lindsey R. Case:
Increased Stability for
Parents and Districts
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The 7th Circuit Appeals Court has brought stability to certain important areas of special education law. This stability will benefit parents, districts, and students in the future.
We would like to call your attention to the Seventh Circuit Federal Appellate Court
decision of Board of Education of Township High School District 211 v. Michael and Diane Ross et al., decided on May 11, 2007. This was an appeal of Federal court decision filed by the Hon. Matthew Kennelly on August 15, 2005, in which the school district prevailed on a so-called “full inclusion” issue. The administrative hearing phase of this case took forty-two days over a span of seven months, resulting in a written Administrative decision in excess of sixty pages. There were over 10,000 pages of transcripts and a like amount of documentary evidence. The Appellate Court referred to this case as “Ross I” because shortly after the issuance of Judge Kennelly’s opinion in favor of the school district, the family, on behalf of the student who had by then reached her majority, sued the parties again. This second case was decided by Judge Plunkett, again in favor of the school district and was also appealed, resulting in a second opinion by the Appellate Court, issued the same day as Ross I, and labeled by the Court as “Ross II.” The appellate panel in both Ross I and Ross II held in favor of the school district, however the decisions solidified areas of the special education law that will favor both parents and districts going forward. In this case, we represented School District #211 and the central issue was the “full inclusion” of a profoundly delayed student with severe disabilities. It is our understanding that Ross I was the longest special education hearing ever held in any state, even though the record is replete with numerous attempts by the school district to settle the matter.18 The Appellate Court in Ross I held that trial Judge Matthew Kennelly was correct in his support of the administrative hearing officer’s detailed and comprehensive decision in favor of the school district. The Appellate Court outlined the facts of the case, stating that the student is a girl with Rett Syndrome, the effects of which are apraxia (speech, hand, and gross motor movements) and significant and profound cognitive delays. She is nonverbal and requires appropriate assistive technology for communication. The student also suffers from numerous medical ailments, some of which require periodic hospitalization. Uncharacteristic to Rett Syndrome generally, the student was also unintentionally aggressive to herself and other staff members, resulting in frequent and significant injuries.
As can be seen in the attached decision, which is similar to the Beth B. Federal appellate decision, the school district went to extraordinary measures in an attempt to defer to the parents’ wish to have their daughter educated in a mainstream environment. However, after nearly three years of trying, due to the student’s extensive and unique disabilities, district staff determined that she desperately required more intensive programming than could be provided in the traditional high school classes preferred by the parents. The district decided to take a principled position over and above parental objections and recommended that she be placed in a self-
18 For example, the parents rejected numerous offers of full payment for private facilities both on and off the ISBE state approved list of nonpublic facilities nationwide, stating they wanted their daughter to be “fully included” rather than placed in a program geared to intensively teach the functional skills the district personnel sincerely felt she needed to learn.
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contained, multi-needs classroom, at full district expense, after numerous offers of appropriate private placements were rejected. The parents disagreed with this recommendation, asserting that the school district should create an appropriate program for the student in her “home school,” and insisted that she be educated “within her own community.” This was a classic “full inclusion” dispute. The Appellate Court described the staff’s ethical expression of conscience that was presented at an IEP meeting in August 2003:19
By the end of her ninth grade year…staff members who worked closely with Lindsey sincerely believed she was receiving virtually no educational benefit in the mainstream. Based on these beliefs, public school personnel recommended a placement at a separate school designed to appropriately meet Lindsey’s needs. [T]he belief among District #211 staff that Lindsey is not being appropriately served in the mainstream still exists…However, staff is also advised by legal counsel that the settlement agreement continues to control and therefore they will in good faith implement whatever IEP is agreed upon today. Were it not for the settlement agreement, as a matter of conscience, public school personnel would continue to recommend an appropriate public or private self-contained setting.
The parents interpreted this statement as a “predisposition” of the IEP by school staff. In fact, the Appellate Court took it as it was: a sincere expression of concern on the part of the staff that the controlling settlement agreement was forcing them to make a recommendation that they felt ethically they could not make without explanation.
At the conclusion of the exceptionally lengthy administrative proceedings, the hearing officer thoroughly considered all of the evidence and held for the District that a self contained multiple needs program was the minimally restrictive and appropriate placement where the student could receive a free and appropriate public education. Subsequent to publication of the case by LRP, parents appealed at the Federal court level, and Judge Matthew Kennelly, in a written opinion, supported the hearing officer, dismissing the parents’ claims.20 Parents then appealed the decision to the Seventh Circuit, which resulted in the attached opinion.21 In parallel with Lindsey I, another lawsuit was filed against District 211 and certain individuals shortly after the trial level decision was filed by Judge Kennelly. This action was ostensibly on behalf of the student, who had reached her majority and allegedly had decided to proceed independently, even though there were serious questions about her capacity to do so. Judge Plunkett, in another written opinion, also held for the school district on the basis that they had already had their day in court in Lindsey I and shouldn’t be given another bite of the apple.22 This decision was also appealed by the student and her parents, which resulted in a second
19 This statement was drafted by Brooke Whitted during a break in the IEP meeting after staff expressed their heartfelt concern that their decisionmaking was being guided by an active settlement agreement which was compelling them to recommend a placement they did not feel was appropriate. 20 Board of Educ. of Tp. High School District No. 211 v. Ross, 105 LRP 40802 (N. D. Ill. Aug. 15, 2005) 21 Board of Educ. of Tp. High School District No. 211 v. Ross, 2007 WL 1374919 (7th Cir. 2007) 22 Ross v. Board of Educ. of Tp. High School Dist. 211, 2006 WL 695471 (N. D. Ill. Mar. 14, 2006)
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Appellate Court decision in favor of the school district.23 Both cases are significant for parents and schools for the reasons examined below.
Implications of Ross II – Finality of Settlement Agreements
Shortly after the District Court issued its opinion in Ross I, Lindsey and her parents filed a second federal suit against the school district, its Director of Special Education, and a medical expert who appeared in the administrative hearing for the district. Damages were sought, however the second case arose from the same facts as the first case. The only difference was that Lindsey had reached her majority, and was ostensibly suing on her own behalf with her parents as her next friends. Judge Plunkett held in favor of the school district based on claim preclusion and the Appellate Court in Ross II affirmed.
The Ross II case is a positive development for both parents and school districts in special education cases. In the case of parents as plaintiffs, often school lawyers are reluctant to settle special education matters because, they argue, a student can reach his or her majority and sue the district all over again on his or her own behalf. The Ross II case puts this argument to rest and conforms this issue to the well established federal policy of encouraging non-court resolution of special education disputes. Likewise, school districts need no longer worry (in this jurisdiction) about the adult former student coming after them even after the parents have sued previously. In other words, Ross II benefits both parents and school districts by bringing increased stability and finality to settlement agreements entered into by parents on behalf of their children. The Seventh Circuit has made it clear that once parents bring such actions, the student is precluded from having another bite of the litigation apple once he or she becomes an adult. Current case law now more strongly encourages amicable settlement in conformity with the IDEIA policy. Implications of Ross I – Parental Participation and LRE
The Ross I case is quite complex due to its chronology and the controlling settlement agreement that led to the administrative hearing being held, pursuant to a Federal court order, in the first place. We will not summarize the full chronology of the case here but suggest a close reading of the attached opinion for those who are interested, especially pages 4-9. The court mentions that the administrative hearing officer (hereafter “IHO”) held that the parents were maximally involved in the IEP process, including its implementation and modification – contrary to the position of the parents. This is in full compliance with the Rowley case in which the US Supreme Court required, as far back as 1982, that parent involvement must be maximized. The court compares the facts in Ross I with the Target Range case (where the IEP was prepared without any parent participation) and concludes Ross I is a “far cry” from Target Range.
The court also makes short work of the parents’ arguments that the school district was
biased from the beginning due to the statement of conscience (outlined above) as well as the fact that the district had a lawyer positioned at the courthouse and ready to file, depending on what the IEP participants decided. The court felt that the statement of conscience was just that, and 23 Ross ex rel. Ross v. Board of Educ. of Tp. High School Dist. 211, 2007 WL 1374863 (7th Cir. 2007)
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that the lawyer-at-the-courthouse argument did not have the sinister meaning the parents attached to it.
Finally, the court deals with the least restrictive environment (“LRE”) issue in which parents argued that as long as Lindsey is receiving “some benefit” she must be kept in the mainstream. The court said this was not enough, and instead asked whether education in the conventional school was satisfactory, and if not, whether reasonable measures would have made it so. The court listed some examples of how the school district attempted in good faith to serve Lindsey educationally, concluded that these were proper attempts, and that the decision to move the student to a more restrictive setting complied with relevant statutes and decisional case law.
It is clear that in this jurisdiction, with Ross I and the Beth B. cases, the LRE definition is not education with nondisabled students to the maximum extent possible. LRE in the Seventh Circuit means education to the maximum extent appropriate, with appropriate being the controlling term. Conclusion Ross I and Ross II bring increased stability to two special education areas. In the LRE area, the Seventh Circuit takes a common sense approach and unequivocally rejects the complicated multi-tiered tests developed in other circuits. An LRE analysis is now simpler and more concrete and easy for both educators and parents to comprehend and implement. In the public policy area, Ross II lays to rest the possibility that a student whose parents have prosecuted a hearing or settled a special education claim on his or her behalf could, upon reaching majority come back after a school district on the same issues. This lends stability to decisions made by hearing officers and judges and encourages settlement agreements because all claims will be fully resolved with no doubts about the future. Both cases are therefore quite beneficial for all parties in special education cases going forward.
One final point deserves mention. While these cases concern a public school district, the reasoning is consistent with cases involving private schools, where plaintiffs seek to force these institutions to change in some fundamental way. Courts will not generally support such efforts in either the public or private sector as long as the facility is otherwise legally compliant. We feel the Ross cases help to bring clarification and stability to both public and private sectors on this issue.
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WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road
Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8419
www.wct-law.com [email protected]
LIGHT v. PARKWAY: WHEN A SCHOOL DISTRICTBENDS OVER BACKWARDS
TO ACCOMMODATE "INCLUSIONIST" PARENTS:
NO GOOD DEED GOES UNPUNISHED
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Martin Light v. Parkway District C-2, (8th Cir. 1/11/95 St. Louis) 41 F.3d 1223. Lauren Light, a 13 year old with SED, PDD, BD, MMR, autistic features, language impairment, and organic brain syndrome - she is impulsive, unpredictable, and aggressive. She kicks, bites, hits and throws objects. During 1993-1994, she was in a self contained classroom, and parents obtained a transfer to a less restrictive setting. Her IEP then required two on one staffing at all times! She received, consequently, one additional full time teacher, and one aide, totally dedicated, in addition to the regular class teacher. Also, the teachers at the new school were specially trained; the district hired a consultant selected by the family; Lauren in addition to instruction received S/L; OT; PT; adaptive PE; living skills instruction; and "weekly community access." Teachers kept daily logs which were regularly provided to the parents; Lauren participated in PE, art, computer lab, home economics, and library - all "full inclusion." She participated in extracurricular activities. Also, she was given music therapy. No other student in the school received this service. Lauren committed 11 to 19 aggressive acts per week, including biting, hitting, kicking, poking, throwing objects, turning over furniture. During 30 of these (over a two year time line), the attention of the nurse was required. This behavior had a negative effect on the progress of the five other students in the program. The class was rarely able to complete a lesson plan. One student required supplemental support to compensate for Lauren's behavior - and all the parents were quite upset. In November, 1993, the multidisciplinary team re-evaluated the situation. In a full-day IEP meeting on March 23, 1994, a change of placement was recommended. Parents requested a hearing and invoked "stay-put." On April 12, 1994, Lauren attacked another pupil, hitting her three times on the head - and the principal suspended her for ten days. Parents immediately filed in federal district court to have this lifted and the district counterclaimed to remove Lauren from the program during pendency of the proceedings. The district claimed a substantial risk of injury to self or others, and further argued that parents were not present at informal hearing prior to suspension and Lauren had no capacity to represent her interests, thus, there were procedural violations. The trial court held for the parents, found that they had been denied due process, and lifted the suspension. Then there were more hearings and the same court reversed itself, holding for the district. The court further declined to inquire into what placement would be appropriate, or into the district's efforts to accommodate Lauren's disabilities.
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Court's Discussion 1. "The IDEA seeks to guarantee the educational rights of disabled children
by requiring policies of inclusion" - then cites LRE language, and Oberti's "strong preference" language.
2. Discussion of required procedural protections, with emphasis on Honig v.
Doe standard of substantial likelihood of injury. Parents' argument that underlying, the child must "intend" injury was rejected. The purpose of removal is not punishment but maintaining a safe learning environment for all students. (41 F.Rep.3d at 1228). Also, "removal" does not terminate a placement.
3. The Court also outlined a second test for removal:
The district must show that it has made reasonable efforts to accommodate the child's disabilities so as to minimize the potential for injury to self or others. This boils down to whether the district has made reasonable use of supplemental aids and services. This may give rise to the argument they must actually be tried before more restrictive placement is implemented.
(Quote from 41 FR.3d 1228 n. 4, 5):
Where injury remains substantially likely to result despite the reasonable efforts of the school district to accommodate the child's disability, the district court may issue an injunction ordering that the child's placement be changed pending the outcome of the administrative review process.
There was a substantial likelihood of injury; parents' arguments that these were merely "nuisance" behaviors were rejected.
Holdings:
1. A child need not first inflict serious injury before being deemed "substantially likely" to do so.
2. The district took reasonable steps to minimize the risk of injury.
3. Removal of child from program was proper.
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WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road
Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8419
www.wct-law.com [email protected]
PROVIDING HEALTH- RELATED SERVICES
TO MEDICALLY INVOLVED CHILDREN
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PROVIDING HEALTH-RELATED SERVICES TO MEDICALLY INVOLVED CHILDREN
by Brooke R. Whitted
I. STATUTORY AUTHORITY The IDEA is the controlling statute. The relevant sections of IDEA and its implementing regulations state in pertinent part:
Statute 1. Any state receiving federal funds under the IDEA must provide its students
with a free appropriate public education. 20 U.S.C. 1412(1). 2. The term "free appropriate public education" means special education and
related services that have been provided at public expense. 20 U.S.C. 1401(18).
3. "Special Education" means specifically designed instruction at no cost to
parents or guardians, to meet the unique needs of a child with a disability including instruction conducted in the classroom, home, hospitals and other settings.
4. "Related Services" means transportation, and such developmental,
corrective, and other supportive services ... (including medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education. 20 U.S.C. 1401 (17) (emphasis added).
REGULATIONS
5. "Related services" for handicapped children include "school nurse
services." 34 C.F.R. 300.13(a). 6. "School nurse services" are services provided by a qualified nurse or other
qualified person. 34 C.F.R. 300.13(b)(10). 7. "Medical services" are services provided by a licensed physician. 34
C.F.R. 300.13(b)(4).
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II. CAPSULE SUMMARY The school district will be obligated to provide a particular health-related service if service at issue constitutes a "related service" as provided by IDEA, as opposed to a "medical service" as provided by IDEA. Therefore, in every case summarized below, the primary question before the court is whether the disputed health-related service constitutes a "related service" or a "medical service." III. CASE LAW A. Irving Independent School District v. Tatro, 104 S.Ct. 3371 (1984) Facts: Amber Tatro was an eight-year-old severally orthopedically
impaired girl with spina bifida. Her health problems included a neurogenic bladder which prohibited her from emptying her bladder, resulting in the need for her to be catheterized every three-four hours to prevent injury to her kidneys. The catheterization procedure could be performed in a few minutes by a lay person who received less than one hour of training.
Held: Catheterization constitutes a related service because it is a
supportive service required to assist a handicapped child to benefit from special education, as provided in 20 U.S.C. § 1401(17).
Reasoning: * In creating the Act,24 Congress sought primarily to
make public education available to a handicapped child and to make such access meaningful [Rowley].
* The Act makes specific provision for services, such as
transportation for example, that do more than enable a child to be physically present in class.
* School nurses have long been part of the education
system and one can reasonably conclude that school nursing services are not the sort of burden Congress intended to exclude as a "medical service."
24 "The Act" refers to the IDEA or its predecessors.
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* The definition of "medical services" in the regulations
suggests that Congress intended to spare schools from an obligation to provide a service that might well prove unduly expensive and beyond the range of their competence.
* By limiting the "medical services" exclusion to the
services of a physician or hospital, both of which are far more expensive than the catheterization procedure, it is permissible to conclude the catheterization services do not constitute a "medical service" excludable under the Act.
* The obligation to provide services that relate to both
the health and educational needs of handicapped students does not create an undue burden on the school districts. Several limitations within the statute and regulations minimize the burden. The limitations are:
1.) To be entitled to "related services" the student
must be handicapped so as to require special education. (20 U.S.C. 1401 (1), 34 C.F.R. 300.5).
2.) Only those services necessary to aid a
handicapped child to benefit from special education must be provided, regardless of how easily a school nurse or lay person could furnish those services.
For example, if a child required
an insulin shot one time a day and the shot could be administered at night, the school would not be required to provide those services.
3.) School nursing services must be provided only
if they can be performed by a nurse or other qualified person, not if the service must be
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performed by a physician. (34 CFR 300.13(a), (b)(4), (b)(10)).
B. Tokarcik v. Forest Hills School District, 655 F.2d 443 (3rd Cir. 1981) Facts: A fourth grade girl, also named Amber, was also born with
spina bifida, and required intermittent catheterization every four hours.
Held: For the child under reasoning similar to Tatro. Reasoning: * Because special education specifically contemplates
instruction in a regular classroom (see 20 U.S.C. § 1401), "related services" necessarily include what is required within reason to make such a setting possible for a child who can benefit from it.
* An appropriate education for a physically handicapped
child with normal intellectual ability aims at promoting achievement roughly equivalent to that of her non-handicapped peers. Special educational for Amber should entail classroom instruction, for the nature of her handicap is not so severe as to preclude the possibility of education in a regular environment. Such a placement would demand in terms of related services, only that the school make the classroom physically accessible to Amber and reasonably provide for health needs that might otherwise interfere with classroom performance which is exactly what catheterization would accomplish.
* The definition of related services (20 U.S.C.
§1401(17)) foreclosed the argument that related services pertains only to services directly linked to the effort to educate, and excludes therapeutic services contributing to other than educational needs.
* Related services need not be education-specific and
may be critical outside the formal educational setting. The regulations clarify that related services includes
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school health services (34 C.F.R. 300.12(a)). In light of the findings that catheterization can require no more than a few minutes a day, and no expenditure of funds if performed by the school nurse already required to be on staff at every school district, or very little expenditure of funds if performed by a part-time nurse, such services constitute a related service.
* Even if school did not have a nurse or nurse's aid to
catheterize, the school would still be obligated to provide Amber with an appropriate education (presumably, it would then have to hire someone to provide these services).
* The regulations place realistic limits on the nature of
school health services to be provided under the Act. (See limits in Tatro). Drastic medical services that only a doctor can perform are excluded by the Act.
* In this case, the court is not confronted with difficult
value choices between placing the burden of fiscal limitations on handicapped children as opposed to school districts, or between advantaging a handicapped child by mainstreaming rather than enhancing the education of her nonhandicapped students by excluding her.
* The alternatives of a special classroom or at home
instruction are less cost beneficial.
NB: Notice how the court states that the responsibility to provide related services is limited to "what is in reason," and how the court emphasizes that the disputed services are inexpensive, relatively easy to provide, and do not harm the education of other students. This reasoning represents the court's own value judgment and interpretation of the law. No where do
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the statutes or regulations provide for this interpretation.
C. McKenzie v. Jefferson, 566 F.Supp. 404 (1st Cir. 1983) Facts: A very intelligent, but severally emotionally disturbed girl
spent a year in a psychiatric facility where she received residential care. The girl attended school at the facility. The school agreed to pay for the educational placement, but disputed the residential hospitalization services, claiming they were not related services under the Act.
Held: For the district. Reasoning: * The services at issue are clearly medical in nature and
do not fall within the related services category as set forth under the Act.
* The hospitalization services are not something a
layman with training can provide -- here, there must be doctors.
* The only type of medical service a school is obligated
to provide a handicapped student are those that are for diagnostic and evaluative purposes. (20 U.S.C. 1401(12)0.
D. Detsel v. Board of Education of the Urban Enlarged City District, 637
F.Supp. 1022 (N.D. N.Y. 1986) Facts: Melissa, a seven-year-old with severe physical disabilities,
required constant respirator assistance, a continuous supply of 40 percent oxygen, and constant observation by an individual trained to monitor her health. The individual would have to know how to check Melissa's vital signs, administer medications through a tube, perform a "P, D and C" procedure, which calls for the ingestion of saline solution into the child's lungs and suctioning of the child's lungs, and perform CPR.
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Held: For the District. The required services are not related services. The school is not required to provide a severely disabled child with constant in-school nursing care.
Reasoning: * The care Melissa requires is complicated and requires
the skill of trained professionals. * In Tatro, the Supreme Court clearly considered the
extent and nature of the [related] service to be performed.
* Here, the provision of the disputed services
undoubtedly enables Melissa to attend school during the day. However, it does not necessarily follow that because Melissa can attend school only with the assistance of the services, that they must be provided by the school.
* The disputed services do not fall squarely within the
terms of the "medical services" exclusion because they need not be performed by a physician. Nor do they qualify as simple school nursing services.
* Because of the ongoing and extensive nature of the
disputed services, they closely resemble "medical services" and are thus precluded under the Act.
NB: Notice again how the court is
further carving out an exception to the obligation to provide related services when the student requires continual care from a highly skilled individual (but not a physician).
*This case abrogated on 3/3/99 by the U.S. Supreme Court in Cedar Rapids case*
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E. Max M. v. New Trier High School, 859 F.2d 1297 (7th Cir. 1988) Facts: Max M. sought attorney’s fees based on the passing of the
Handicapped Children’s Protection Act (“HCPA”). His case was pending on July 4, 1984 and was not resolved until March of 1986. The Act was passed in August 1986 as an amendment to the education for All Handicapped Children Act. The district court awarded Max attorney’s fees and the school district appealed on the grounds that the HCPA amendment was unconstitutional and inapplicable. The school district argued that Max had not filed his request within 90 days of the judgment in compliance with Local Rule 46. Max argued that it was impossible to have met the 90 day rule as the HCPA amendment had not yet been passed.
Held: The district court held that although the time frame should be
shortened to facilitate intelligent decisions about appeals, the 90 day rule governed. The district court reduced the amount of fees Max had been awarded to reflect the lack of success on other issues. The decision was affirmed by the Seventh Circuit.
Reasoning: The district court opinion dealt with the substantive issue of
whether “psychotherapy” was a related service. The holding was in the affirmative, along the lines of the Garret F. case. The court simply asked whether the service was capable of being delivered by a non-physician; answer was yes. The district had to reimburse the parents at the cost level of a non-physician. [Author’s case on the administrative level.]
F. Macomb County Intermediate School District v. Joshuas, 715 F.Supp.
824 (U.S. Dist. 1989) Facts: A severely multiple impaired student with a tracheostomy
required constant monitoring from a trained individual. The school refused to pay for those services during the child's transport to and from school. The issue on appeal was whether the school must monitor the student's medical needs during transport (not during the school day).
Held: For the student.
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Reasoning: * Both Detsel and Bevin refused to acknowledge the Supreme Court's directive in Tatro. Instead, Detsel and Bevin incorrectly held that "extensive therapeutic health services" not requiring administration by a physician were medical in nature. This is an incorrect expansion of the medical services definition under the IDEA.
* No evidence was presented to suggest the disputed
services had to be performed by a licensed physician. Therefore, the services do not fall within the medical services exception.
* While disagreement exists as to whether a trained lay
person could adequately service the student's needs, Tatro supports the conclusion that use of a medical professional, other than a physician, if necessary to safely transport the student, is a “related service.”
G. Three Villages Central School District Board of Education, 18 IDELR
938 (New York, 1991, Level II) Facts: A minor with cervical spine injury, quadriplegic, recurrent
urinary tract infection, neurogenic bowel and bladder, and scoliosis, required assistance with catheterization and tracheostomy care. The minor required continual care by a person trained and certified in the use of ventilator equipment.
Held: For the school under reasoning similar to Detsel. H. Granite School District v. Shannon M., 787 F. Supp. 1020 (U.S. Dist.
1992) Facts: Shannon was a six-year-old with congenital
neuromuscularatrophy and severe scoliosis. She was confined to a wheelchair, breathed through a tracheotomy tube which required suctioning five times during a three hour school day, and ate through a nasogastric tube. Sometimes she required a portable ventilator.
Held: For the school.
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Reasoning: * The Tatro decision cannot be read as an endorsement of the proposition that all school health services performed by persons other than licensed physicians are related services under the Act, regardless of the amount of care, expense, or burden on the school system, and ultimately on the other school children.
* Following subsequent interpretations of Tatro by a
majority of courts, the issue of whether a school health service is a related service or excludable medical service must depend on the amount of care required, the cost of the care, and the other children.
* In dicta, the court indicated that the facts might be
different if the state regulation did not allow home bound instruction.
I. Barnegat Township Board of Education, 19 IDELR 724 (N.J. 1992,
Level I) Facts: A six-year-old with cerebral palsy was placed in full leg casts
for three to four weeks, during which time she required repositioning throughout the day to prevent medical complications.
Held: For the child.
Reasoning: * Repositioning services can be performed by a school nurse, physical therapist, or other school employee with little, if any, additional training.
* The student would not be able to attend school while
she remained in the leg casts but for the repositioning performed on a daily basis during school hours. Thus without the services, the child would not receive the special education to which she is entitled.
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J. Neely v. Rutherford County School, 68 F.3d 965 (6th Cir. 1995) Facts: Samantha, a seven-year-old girl, had a medical condition
requiring a tracheostomy, resulting in the need for regular suction of her throat, nose and mouth to avoid serious and life threatening consequences. She required continuous care by a well-trained individual to provide respiratory care.
Held: For the school. Reasoning: * This case is distinguishable from Tatro. In Tatro, the
service required was not unduly expensive or beyond the school's range of competence.
* A school district is not required to provide every
service which is medical in nature. * The services required here are too burdensome.
*This case abrogated on 3/3/99 by the U.S. Supreme Court in Cedar Rapids case* K. River Forest School District. No. 90 v. Illinois State Board of
Education, 1996 U.S. Dist. LEXIS 4988 (N.D. Ill. 1996) Facts: Christopher D. was diagnosed as having Landau-Kleffner
Syndrome, a severe form of communication disability, which is a developmental neurological disorder marked by autistic behaviors and epilepsy. To treat his seizure activity, Christopher had two major brain surgeries. His doctor said the second surgery was his only chance of recovery.
In February 1994, after the first surgery, the district
determined Christopher to be eligible for special education services and developed an IEP which identified nine annual goals, including improvement of his language skills. The district recommended private placement of Elim Christian Day School (“Elim”). At the beginning of the 1994-95 school year, the district did not have all the supplemental related services outlined in the IEP in place at Elim. Christopher’s
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mother requested a Level I due process hearing and in November 1994, she notified the district that Christopher would be undergoing a second brain surgery due to a “pre-operational loss of some critical cognitive functions.”
Following surgery, the district planned to return Christopher
to Elim and reportedly failed to increase Christopher’s related services to the extent necessary as a result of the second surgery. Christopher’s mother placed him on the inpatient unit of the Rehabilitation Institute, a hospital specializing in the rehabilitation of brain injured patients, from January through March 1995. At the Rehabilitation Institute, Christopher receive intensive daily speech and language services, occupational and physical therapy, and a one-to-one aide.
Upon his discharge from the Rehabilitation Institute,
Christopher received services from Cognitive Rehabilitation Services (“CRS”) for speech, language and occupational services. The district offered CRS an unacceptable, significantly reduced payment rate and in March 1995, the district informed Christopher’s mother that CRS was not an “approved” state board special education facility. It further stated the placement was “medical, not educational,” and that it would not pay for the placement. The district did agreed to provide a one-to-one aide as a related service for the time Christopher was at CRS. Christopher’s program at CRS consisted of speech and language therapy, occupational therapy, and monitoring by the medical staff.
In July 1995, Christopher was transferred to Rehabilitation
Institute and received services similar to those provided at CRS.
A Level I due process hearing was held in April and May
1995, and the hearing officer found that Elim was not an appropriate placement. The district was ordered to immediately convene a MDC to consider the CRS as a private placement, to reimburse the parent for occupational and speech therapy at the Rehabilitation Institute, as well as for daily transportation to CRS, and to maintain the employment
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of the one-to-one aide. The holding was later affirmed at a Level II due process hearing.
Appeal: Medical v. Educational Placement On appeal, the district argued that the placement at the
Rehabilitation Institute was medical, rather than educational in nature. The court gave due deference to the hearing officers’ decisions and stated the services were “educational” because Christopher received therapy in order to facilitate his ability to communicate. Christopher’s “most pressing service need is for a highly structured integrated educational program which will be directed at restoring former functional levels in communication, sensory motor skills, and daily living skills.” Furthermore, as noted in the Babb case,
The concept of education under the Act
clearly embodies both academic instruction and a broad range of associated services traditionally grouped under the general rubric of ‘treatment.’ Any attempt to distinguish academics from treatment when defining ‘educational placement’ runs counter to the clear language of the Act.
Looking specifically at Christopher’s unique situation, the
court said:
Christopher’s severe communication disability precludes academic learning. Simply because a child is so severally disabled that he is unable to participate in reading, writing and arithmetic lessons does not mean that his treatment is ipso facto medical.
Reim- bursement: After determining that Elim was an inappropriate placement
and that the Rehabilitation Institute was appropriate, the court ordered the district to reimburse the parent for the rehabilitation services. However, the court followed the
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holding of Max M. v. Thompson,25 592 F.Supp. 1437 (N.D. Ill. 1984) and stated the district was limited to reimbursing the occupational and speech therapy at the customary rate the district pays to such personnel.
State Board Responsi- bility: The school district argued that the State Board of Education
was financially responsible for the placements at the rehabilitation facilities, because pursuant to regulation, the district is precluded from placing students at non-state-board-approved placements. The state board pointed to relevant state regulations and argued that because the district failed to submit any undisputed facts establishing it took the necessary steps with the parent or the state board to provide Christopher with a comprehensive program following his second brain operation, the parent was compelled to unilaterally place Christopher at non-approved private facilities. The court found the State Board’s argument persuasive.
L. Cedar Rapids Community School District v. Garret F., 1999 WL
104410 (U.S. Supreme Court, March 3, 1999) Facts: Garret F. was a wheelchair-bound and ventilator dependent
student. He requires, in part, a responsible individual nearby to attend to certain physical needs during the school day.
Held: The Individuals with Disabilities Education Act (IDEA)
required a public school district in a participating state to provide a ventilator-dependent quadriplegic student with one-on-one nursing services during school hours. Garret F.’s continuous care is not medical treatment, and therefore must be publicly funded under the IDEA. The school district was required to provide nursing service to Garret F.
Reasoning: * The Court affirms and employs the reasoning in its
previous decision of Irving Independent School District v. Tatro, 104 S.Ct. 3371 (1984). The services
25 Handled at Levels I and II by Brooke Whitted.
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at issue had to be provided if the student was to remain in school. Under the statute, relevant Supreme Court precedent, and the purposes of the IDEA, the school district was required to fund such “related services” in order to help guarantee that disabled students were integrated into the public schools.
* Most of the requested services were already provided
by the school district to other students. Further, the in-school care necessitated by the student’s ventilator dependency did not demand the training, knowledge, and judgment of a licensed physician, and did not fall within the “medical services” exclusion.
* The continuous character of certain services associated
with the student’s ventilator dependency had no apparent relationship to whether they were “medical” services. Continuous services might be more costly and require additional school personnel, but they were not thereby more “medical.”
* A rule limiting the medical services exemption to
physician services is a reasonable and generally workable interpretation of the statute.
* Finally, although the school district raised legitimate
concerns about the financial burden that it would be required bear to provide the services that the student needed to stay in school, IDEA did not employ cost in its definition of “related services” or excluded “medical services.” Accepting the school district’s cost-based standard as the sole test for determining the scope of the provision would require the Supreme Court to engage in judicial lawmaking without any guidance from Congress, and would create tension with the purposes of IDEA.
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IV. CONCLUSIONS The U.S. Supreme Court has now adopted the Tatro “bright line” test: if a related service is required to enable a qualified disabled pupil to remain in school, it must be provided as long as it is not a purely “medical” service. And the determination of “medical” is provider controlled, that is, if the service can only be provided by a licensed physician, it is an exempt “medical” service unless it is needed for diagnostic or evaluative purposes. If, however, the service is capable of being delivered by a non-physician, it must be provided by school districts regardless of any financial or staffing burdens the services might impose. The Supreme Court has again - and quite predictably in light of the Honig case on expulsion - read the Act for its plain, simple meaning and has again declined to “read in” exceptions are not present in the statute.
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Brooke R. Whitted Lara A. Cleary
WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road, Suite 303
Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8661
www.whittedclearylaw.com [email protected]
THE FINAL WORD ON SCHOOL
HEALTH SERVICES:
THE U.S. SUPREME COURT DECISION IN
CEDAR RAPIDS
CSD v. GARRET F.
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THE FINAL WORD ON SCHOOL HEALTH SERVICES: CEDAR RAPIDS CSD v. GARRET F.
by Brooke R. Whitted
I. Facts and Case History When he was four years old, Garret’s spinal column was severed in a motorcycle accident. There was no adverse effect on his mental capacities. He is ventilator dependent and needs someone nearby at all times. In 1993, mother requested the school district to be financially liable for one-to-one school nursing services while Garret was at school. The school district denied this and thought at that time they were not responsible for services they felt were “medical.” Garret was the only ventilator dependent pupil in this district of 17,500 students. Mother requested a hearing and during the proceedings, the school district admitted the services were capable of being provided by a non-physician. The administrative hearing officer held that the school district had to provide the services, for this reason, according to the Tatro case. The school district then appealed the hearing officer’s administrative decision in federal court, and the court upheld the hearing officer’s ruling, granting the parent’s motion for summary judgment. The Court of Appeals affirmed, using the Tatro “bright line” test, since it was undisputed that Garret could not attend school if the services were not provided. II. The Supreme Court Opinion A. District’s Position In its petition, the school district asked the Supreme Court to overrule the appellate court in favor of a ”multi factored” test, not a “bright line” test. The Supreme Court held in favor of the Appellate Court because, they said, the text of the related services definition is very clear, and here, the district did not challenge the idea that Garret needed the services requested. The court further commented in a footnote that they see no reason to either revise Tatro or rewrite the U.S. Department of Education’s regulations, which favor the test used by the Appellate Court. The court therefore held that the in school services, while more extensive and expensive, must be provided, and further that Garret’s needs were no more “medical” then those needed by Amber Tatro in her case. [1999 WL 104410*4.]
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1. “Continuous” and “Complex” (Translation: Expensive) The school district used an argument that the services were required in a complex form and they were necessarily “continuous.” Yet the court said unequivocally that “the district’s multi factor test is not supported by any recognized source of legal authority.” Just because “continuous” services may be more costly and require more personnel does not make them any more “medical” under Tatro. [Footnote 8 at 1999 WL104410*5.] 2. Limitations of “Existing” Staff The court further stated that the “district cannot limit educational access simply by pointing to the limitations of existing staff. The district must hire specially trained personnel as required by law.” As to this problem of existing school staff being unable to meet all of their responsibilities and provide for Garret too, the concept was dismissed out of hand. As in Honig, the U.S. Supreme Court declined to read into the law a definition that was not present. The court was remarkably consistent here. Note also footnote 9 (at 1999 WL104410*5) which mentions that Garret had a teaching assistant who also was a qualified LPN. In Iowa, the State Board of Nursing has held that RN’s can delegate responsibilities to LPNs. The court further held that school districts cannot use cost itself in the definition of related of related services. This would be “judicial law making without any guidance from Congress.” Citing Rowley, as courts always do, the court further required that districts must “open the door” of opportunity to all qualified children. There is no “onerousness” exception. III. Summary The analysis in this case is just as simple as that found in the Tatro case: is meaningful access to the public schools assured? This is not about the “level of education that a school must finance once access is attained.” To be specific, the services at issue were as follows:
1. Ventilator checks; 2. Ambubag (manual breathing assistance) when ventilator is
being maintained and as needed; 3. Urinary bladder catheterization; 4. Suctioning of tracheotomy tube as needed; 5. Getting Garret into a reclining position five minutes during
every hour; and
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6. Assistance from someone who is familiar with emergency procedures, in other words, at least an LPN.
The court held that regardless of how expensive or complex (the dissent points out that the services will cost the school district $18,000 per year), the services must be provided if Garret is to remain in school. It was held that the district is required to provide these services and further, that the Neely and Detsel cases (appellate cases favoring the approach of the district) have now been abrogated. IV. Conclusion The U.S. Supreme Court has now adopted the Tatro “bright line” test: if a related service is required to enable a qualified disabled pupil to remain in school, it must be provided as long as it is not a purely “medical” service. And “medical” is provider controlled, that is, if the service can only be provided by a licensed physician, it is an exempt “medical” service unless it is needed for diagnostic or evaluative purposes. If, however, the service is capable of being delivered by a non-physician, it must be provided by school districts regardless of any financial or staffing burdens the act of providing the services might impose. The Supreme Court has again - and quite predictably in light of the Honig case on expulsion - read the Act for its plain, simple meaning and has again declined to “read in” exceptions that are not present.
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WHITTED, CLEARY & TAKIFF LLC Suite 303 3000 Dundee Road Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8419 www.wct-law.com [email protected]
SERVICES AT PRIVATE SCHOOLS:
OBLIGATIONS OF SCHOOL DISTRICTS
FOR VOLUNTARILY ENROLLED
STUDENTS AND
“UNILATERAL” PARENT PLACEMENTS
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PRIVATE SCHOOLS
Retroactive Reimbursement Under IDEA
I. The Burlington Case A. Introduction Prior to the Burlington case,26 it was very difficult for advocates to
argue on behalf of parents that retroactive reimbursement was a remedy which might be available under IDEA. Nevertheless, in 1985, the Burlington case was decided. A few of the very unusual things about the Burlington case were that (1) it was a unanimous U.S. Supreme Court decision and (2) it was an opinion delivered by Justice Rehnquist. As some of the readers of this article might be aware, unanimous Supreme Court opinions do not occur all that often, and Mr. Justice Rehnquist was not known for his sympathies toward protected groups. These two factors make the Burlington opinion all that much more powerful.
B. The Opinion The Burlington opinion involved the parents' unilateral placement in
a facility, in part during the pendency of proceedings under the IDEA. At the end of the case, since the district noted that the parent had only prevailed partially, the school district sought to be paid back for that period of time during which it felt it had "won" part of this six year case. The U.S. Supreme Court said that the "stay put" or "frozen placement" provision did not work two ways. In other words, the IDEA provision is parent oriented. Thus, it applies only where a parent, in an attempt to provide an appropriate educational setting for his or her child, effects a unilateral placement in an appropriate facility.
There was a caveat in the case. Where an appropriate education is
shown to have been made available by the district at the time the unilateral placement was made by the parent, the parent placement of the child in a non-public location is at parents own expense. This tracks precisely with the provision in the regulations at 34 C.F.R. 300.403(a) which stated at the time the case was decided:
26 Burlington School Committee v. Department of Education of Massachusetts, 471 U.S.
359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).
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If a child with a disability has FAPE27
available and the parents choose to place the child in a private school or facility, the public agency is not required by this part to pay for the child's education at the private school or facility.
II. The Carter Case A. Introduction Once the Burlington case was decided, legal luminaries in the field
of parent advocacy were most pleased to advise their clients that this remedy was available, as long as the facility chosen by the parent “met the standards” of the state in which retroactive reimbursement is sought. In Illinois, for example, the state statute provides for the state board to maintain an "approved" list of placements which have met certain state standards.28 In Indiana, there is no such list and if the proper approvals are obtained in a particular case, any reasonably appropriate facility may be used. States do vary, but advocates did make attempts to steer their clients to "state approved" facilities.
B. The Case Facts In 1993, Justice Sandra Day O'Connor delivered the Carter
opinion.29 In this case, the pupil in question, Shannon Carter, was classified as learning disabled in ninth grade in 1985 and the school's recommendation was regular education with three resource periods per week. The goal was to get Shannon to progress four months during the entire school year. The parents requested a hearing, and on both administrative levels, the independent hearing officers held (against the parents) that the IEP was adequate. Meanwhile, the parents had placed Shannon privately in a school for disabled LD students, but this school was not "approved" by the state and in fact did not even write Individual Education Plans. Shannon graduated from the school in 1988.
In 1986, two years before Shannon's graduation, the parents filed suit to challenge the adverse administrative decisions. After a bench trial, the parents won. The court, in the process, appointed an independent
27 Free Appropriate Public Education. 28 Cite 105 I.L.C.S. 5/14-7.02 (1994). 29 Florence County School District Four v. Carter, ___ U.S. ___, 114 S.Ct. 361, 126
L.Ed.2d 284 (1993).
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expert to evaluate Shannon's progress and gave great weight to the findings.
It was found that she had made "substantial progress" even though the school did not follow all of the state standards. For example, her reading levels rose three grades per year as opposed to the goals designated in the IEP.
The appellate court affirmed that the private school was
"appropriate," and that the parents were entitled to retroactive reimbursement. It should be noted in this case that the violations generally were not procedural but substantive in nature. A challenge to the substantive basis for the IEP becomes a battle of experts and it is best to use the most highly qualified and reputable experts that a parent can afford. An affiliation with a major center of learning also helps.
C. Court’s Holdings The Supreme Court, after reviewing the appellate court and trial
records, delivered the following holdings: (1) that the IEP was inappropriate; (2) that the private school's program was reasonably calculated to enable the child to receive educational benefits under the Rowley30 test; and (3) that retroactive reimbursement to parents when an IEP is found to be inappropriate does not require placement in a state approved program.
In somewhat acid tone, Justice Sandra Day O'Connor asked why
courts should leave the job of "approval" in the hands of the very agency that violated the plaintiff's rights in the first place.
This decision was unanimous, as was Burlington, which was heavily
quoted in the Carter decision. The case further held that Burlington grants parents a right of "unilateral withdrawal" and placement of their child in a non-approved private facility when a district's IEP is inappropriate. The Court explained that "approval" requirements do not make sense in the context of a parental placement. Note also here that the private school was in fairly severe non-compliance with any state standards. Two faculty members were not state certified, they didn't write IEPs, and the State of South Carolina kept no list of approved private schools but "approved" them on a case by case basis. However, it was pointed out by Justice O'Connor that public school officials had previously placed three children at the school.
30 Board of Education v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3051, 73 L.Ed.2d
690 (1982).
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The final holding of the Court is instructive. As support for the
proposition that parents need not seek state cooperation in the form of state approval of the parents' placement, she noted that "such cooperation is unlikely in cases where the school officials disagree with the need for private placement." Id., 114 S.Ct. at 366.
III. Public Law 105-17: The 1997 Revisions to IDEA Limit Carter/Burlington Recovery to Some Degree A. New IDEA Section The new Section 1412(a)(10(C)(iii) mandates that to preserve the
parental right to seek retroactive reimbursement under the Burlington and Carter cases, it is necessary that the district be notified at the “most recent IEP meeting” or letter must be submitted to the district, at least ten business days in advance of actually placing the child, of parental intent to place. This means there must be some evidence that the district has actually received the correspondence, and further, the parent theoretically cannot place prior to ten business days having elapsed from date of receipt. The term “business day” includes any regular business day even though that might fall on a school holiday.
B. Effects of Amendment The Burlington and Carter cases have thus been limited by IDEA
reauthorization. There are certain specific limitations to retroactive reimbursement if parents do not properly comply with their notification duties. For convenience, a sample notification form is attached, “Appendix I.”
IV. Preauthorization - “Proportionate Share” A. Decisional Precursor to Reauthorization Fowler v. Unified School District 259, 107 F.3rd 797 (10th Cir. 1997) B. Facts and Holdings of the Courts Parents withdrew their hearing impaired son from a district school
and enrolled him in a private school, requesting an ASL interpreter onsite full time for purposes of “increased academic challenge.” The school
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district declined and the parents requested a hearing. The hearing officer
held for the parents, with the state level hearing officer reversing against them. The parents then appealed to the federal district court which held for the parents and this case involved the district’s federal appeal of that adverse trial court ruling.
The court held there was an obligation for “equitable” participation
in FAPE for “voluntarily enrolled” pupils, as there is a difference between children placed in private schools through an IEP and those placed “unilaterally” at parental discretion (as in this case).
The court examined K.R. v. Anderson Community School Corp., 81
F.3d 673 (7th Cir. 1996) and Goodall v. Stafford County School Board, 930 F.2d 363 (4th Cir. 1991). Both of these cases held that if FAPE is made available by the district and the parents choose, at their discretion, to enroll the child at a private facility, there is no obligation on the part of the district to give services onsite. The court also looked at Cefalu (103 F.3d 393, 5th Cir. 1997) and Russman (85 F.3d 1050, 2nd Cir. 1996) and Cefalu’s test as follows: “Is onsite provision of services necessary in order for them to be meaningful?” If the answer is yes, according to Cefalu, the student is entitled to some, but not more, benefit than he or she would receive if attendance was at the public school.
C. Discussion Most significant about this case is the pre-IDEA reauthorization
“proportionate share” language. Here, the court stated that district must calculate the average amount spent per pupil (it is unknown whether this is per handicapped pupil or all pupils) in the public school for the service in question, and make an “equivalent” amount of funding available for any student enrolled in a private school. Later, of course, the U.S. Supreme Court vacated the rulings in Anderson, Russman, and Fowler and ordered the appellate courts to reexamine their holdings in light of the reauthorization of IDEA.
V. IDEA Reauthorization - Private Schools (20 U.S.C. §1412(a)(10) et. seq.)
A. Enrollment by Parents - §1412(a)(10)(A)(i) (“voluntarily” enrolled children)
Districts must provide a “proportionate share” of services, in accord
with the following:
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1. Amounts expended for provision of services by a local education agency
shall be equal to a “proportionate amount of federal funds made available under this part.”
2. Such services may be provided to children with disabilities on the
premises of private, including parochial, schools to the extent “consistent with law.”
B. Children Placed in, or Referred to, Private Schools by Public Agencies --
§1412(a)(10)(B)(i) (i) In general - schools must provide FAPE in private facilities if that
was the purpose of making the referral in the first place. (ii) Standards: ► facility and services must meet the LEA standards ► children have the same rights as if directly served by the local
education agency. C. Payment for Education of Children Enrolled in Private Schools Without
Consent of or Referral by the Public Agency -- §1412(a)(10)(C) 1. (i) In general - there is no requirement for the LEA to pay if it was
making FAPE available and the parents elect to enroll the child in a private facility anyway. This is no change from Rowley, Burlington, and Carter.
2. (ii) A district may be liable for retroactive reimbursement if it is
found by a court or hearing officer not to have offered FAPE in a timely manner prior to parental enrollment in a private facility.
► This section seems to be limited to children who have
previously received special education and related services through a public agency.
3. (iii) Limitation on reimbursement - reimbursement may be reduced
or denied (i) if ► (aa) at the most recent IEP meeting the parents did not inform
the LEA that they were rejecting its placement, and including a statement of their concerns, as well as their intent to enroll their child in a private school at public expense; or
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► (bb) parents fail to notify the LEA in writing ten business
days in advance of placement of their concerns, prior to their child’s removal from the public schools. (It should be noted here that “business day” includes any school holidays falling on a business day.) See “Appendix I.”
D. Exceptions to Limitations - §1412(a)(10)(C)(iv) The above section, imposing certain duties on parents, does not apply if: ► Parent is illiterate and cannot write in English; ► Compliance with the clause would likely result in physical or serious
emotional harm to the child; ► The school prevented the parent from providing the required notice; ► The parents have not received a written notice of their own
obligation to provide notice under this section. Further limitations or denials pursuant to §1412(a)(10)(C)(iii)(II) can occur, ► If, prior to parent removal from the public school, the LEA informs
the parents of its intent to evaluate the child and the parents refuse to make the child available for such evaluation, or
► (iii) upon a judicial finding of “unreasonableness” with respect to
the parents.
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UNILATERAL PLACEMENT FORM LETTER
(To be Sent to School Superintendent at Least 10 Business Days in Advance of Placement) Date: __________________ Re: (Name and Age of Student): Written Notice of Intent to Place Disabled Child in Nonpublic Facility and Seek
Reimbursement from School District Pursuant to Public Law 105-17 at 20 U.S.C. 1412(a)(10)(C)(iii)(I)(bb)
Dear Superintendent: Please treat this correspondence as your formal written notification pursuant to the above captioned section of Public Law 105-17. We intend to place our above named child at the __________________ School [address, phone] on ___________, 19____. We will seek reimbursement of costs for that nonpublic facility from your district. As you are aware, Section 1412(a)(10)(C) states as follows:
(C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED IN PRIVATE SCHOOL WITHOUT CONSENT OF OR REFERRAL BY THE PUBLIC AGENCY. (...)
(iii) LIMITATION ON REIMBURSEMENT. The cost of reimbursement described in clause (ii) may be reduced or denied -- (I) if --
(aa) At the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
(bb) Ten business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in division (aa); ...
Please treat this correspondence as your formal 1412(a)(10) notice as required by that section. Sincerely, __________________________________ Parent(s)
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WHITTED, CLEARY + TAKIFF, LLC 3000 W. Dundee Road, Suite 303
Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 Fax
Email: [email protected]
ILLINOIS FUNDING SCHEME
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PRIVATE PLACEMENTS – EDUCATION FUNDING
↓ ↓ ↓ ↓ ↓ ↓ ↓
↓
School District determines that a child is disabled and in need of special education service.
District performs Case Study Evaluation, has staffing, agrees to
place and pay for the private placement.
District fills out ISBE Form 34-37 & sends to Springfield for approval or placement.
(Residential only – No need for ISBE approval for private day school placement.)
District refuses to evaluate, serve or classify child for special education. District suspends/expels disabled child.
Parent or chosen representative has an unequivocal right to request a hearing against School District for purpose of challenging its decision.
Hearing is requested against School District. The issue is usually whether private day or residential school is an appropriate placement for the child, or whether it is appropriate to evaluate child and determine eligibility for special education.
ISBE approves application for placement (residential only) and returns to District.
Child is placed at approved private facility and 100% of the cost is assumed by the District, including all transportation to and from the day or residential school.
Parent WINS – is entitled to retroactive reimbursement, prospective payment for placement and attorney fees.
Parent LOSES – District getsto implement its recommendation UNLESS parent appeals (this process omitted here for simplicity).
School District pays monthly bills as they are received from the facility and submits vouchers to ISBE - Springfield office.
THE ISBE REIMBURSES THE SCHOOL DISTRICT FOR MONEY IT HAS ACTUALLY EXPENDED ON THE PRIVATE DAY OR RESIDENTIAL PLACEMENTS.
TUITION COSTS DISTRICT MUST PAY UP TO TWO TIMES WHAT IT PAYS PER CAPITA FOR “REGULAR EDUCATION”
STUDENTS.
RESIDENTIAL ROOM & BOARD COSTS DISTRICT PAYS BUT IS REIMBURSED BY ISBE AT A
100% RATE FOR THESE COSTS. Also note ISBE pays for transportation costs for private day
school students.
For anything over 2x per capita tuition costs, the ISBE reimburses Districts historically at an 80% rate, usually within 3-6 months.
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METHODOLOGY
- Cochlear Implants
- Autism Spectrum
143
WHITTED, CLEARY + TAKIFF, LLC 3000 W. Dundee Road, Suite 303
Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 Fax
Email: [email protected]
THE CASE FOR ORAL PROGRAMMING
FOR CHILDREN WITH
COCHLEAR IMPLANTS
It is not the traditional Oral – Total Controversy
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POSITION PAPER ON COCHLEAR IMPLANTS
“The goal is for the hearing-impaired child to grow up in a typical learning and living environment and to become an independent, participating citizen in mainstream society.” Dimity Dornan, Let’s Hear and Say: A Current Overview of Auditory-Verbal Therapy, The Auricle 16-23 (Fall/Winter 1999). “Cochlear implantation accompanied by aural habilitation (emphasis added) increases access to acoustic information of spoken language, leading to higher rates of mainstream placement in schools and lower dependence on special education support services.” Howard W. Francis et al., Trends in Educational Placement and Cost-Benefit Considerations in Children with Cochlear Implants, Arch Otolaryngol Head Neck Surg. 125, 499-505 (1999).
Several studies show the benefits of intensive oral habilitation in young children who have received cochlear implants. These children, who were once thought to be permanent additions to special education services in the school systems, and to the so-called deaf culture, are now able to be completely mainstreamed. The key to making this happen is intensive, oral based education which enables full use of their implants. These children must be placed in the appropriate setting as early as possible so that they can make a successful transition from a special education to a regular education setting.
“Educational Management of Children with Cochlear Implants” outlines some procedures for increasing the benefits that profoundly deaf children can achieve with cochlear implants. J. Moog, A. Geers, American Annals of the Deaf, 136 (2), 69-76 (1991). The Central Institute of the Deaf (“CID”) uses an exclusively oral communication program for children with cochlear implants. Although most programs use “total communication” approaches, the CID believes that the more speech the child hears, the easier it is for the child to learn to understand and produce it. When in oral programs, very profoundly deaf children rely exclusively on lipreading and skilled, specially trained teachers to learn to talk. Those in total communication programs, however, rely primarily on sign language to communicate.
“Studies show that over 90% of parents with normal hearing do not use sign language
beyond a basic preschool level of competence.” Let’s Hear and Say: A Current Overview of Auditory-Verbal Therapy at 16. This means that most hearing-impaired children cannot adequately communicate with their parents when their primary mode of communication is sign language. Moreover, ASL is closer to a foreign language than it is to standard English. Children need to receive direct, intensive oral training to develop auditory and speech skills. In most oral programs, this training is an integral part of the entire school day. However, in total communication programs, it is necessary to plan for periods each day when children will work on auditory skills and no signs will be used. This is a far cry from complete immersion in an oral environment.
A study entitled “Speech Intelligibility of Children with Cochlear Implants” explored the relationship between communication mode and speech intelligibility in children who used oral or total communication programs. Mary J. Osberger et al., The Volta Review, 95 (5), 169-180 (1994). The results revealed that the speech of children placed in the oral communication program was roughly twice as intelligible as the speech of the children who were in the total communication program. Therefore, children who use total communication programs do not
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reach their potential in terms of speech development because of problems inherent in their method of communication.
The primary goal of the oral communication program is to eventually mainstream hearing-impaired children so that special education services will not be needed. “Let’s Hear and Say: A Current Overview of Auditory-Verbal Therapy” gives an overview of the current philosophy and teaching methods of Auditory-Verbal Therapy, which teaches hearing-impaired children to become independent of special services and ultimately completely mainstreamed. One of the main differences between the various programs for hearing-impaired children is not what the child can do but what is expected for that child. The aim for hearing-impaired children taught with the Auditory-Verbal approach is for mainstream education and the elimination or near elimination of the need for special education services or accommodations.
According to “Trends in Educational Placement and Cost-Benefit Considerations in Children with Cochlear Implant”, “a cost-benefit analysis based on conservative estimates of educational expenses show a cost savings with cochlear implantation and appropriate auditory habilitation that ranges from $30,000 to $200,000.” Id. at 499. This savings only occurs if these children are given the proper placement in an exclusively oral communication program that teaches children with implants how to be independent of nontraditional forms of communication, as well as the deaf culture, such as sign language, and mainstreamed instead with the speaking society.
Additional support of this position may be found in an OSEP Letter to Cohen found at 25 IDELR 516 (1996). In this letter, it states, “It is especially important that a full continuum of alternative placements is made available to meet the unique communications and related needs of deaf and hard-of-hearing students.” A full continuum would include providing both total and oral communication programs to meet the individual needs of all students, including implanted students. And as the technology advances, the needs of implanted students will be increasingly different from the needs of non-implanted deaf and hearing impaired students.
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A recent due process decision in Illinois changed the former belief that oral communication for Cochlear implanted children was a methodology issue. In W.F. v Flossmoor School District No. 161 (IL 2002) (38 IDELR 50), the school district for a four-year-old boy who was implanted at the age of 18 months attempted to place him in a total communication classroom rather than a totally oral/aural program. The parents had unilaterally placed this child at a private oral/aural day school one year prior to the due process hearing, and requested retroactive and prospective placement at the day school. The hearing officer ruled in favor of the parents on all counts and specifically rebutted the dispute as a methodology issue. He stated, instead, that oral programming for children with Cochlear implants was “not a methodology issue, but rather what the child needs to satisfy the goal of talking.” He further found that “If the goal for this Student is to use his cochlear implant to learn to talk, he needs a highly intensive oral-aural approach to reach this goal. The Parents sought a cochlear implant for him because they wanted their son to be able to utilize oral language as his sole means of communicating with society. For him, to be placed in a different program, would be potentially harmful in that it consumes valuable time in a narrow window of opportunity.” Therefore, the parents were entitled to reimbursement for the past year’s tuition, reimbursement for transportation to the private school and prospective placement at the private school for at least one year.
Two other due process hearing decisions also support the theory that oral communication
programs are the minimally appropriate education for children with cochlear implants. In Eureka Union School District, 28 IDELR 513 (CA, 1998), the school district attempted to place a three-year-old with aided hearing almost equal to the hearing of a nonhearing-impaired child in a total communication class for deaf/hard-of-hearing students. The parents objected, enrolled the child in an auditory/oral program at a private school, and requested a due process hearing for reimbursement tuition costs. “The hearing officer examined the proposed district program for the student and concluded that it was inappropriate. The district program was not designed to address the student’s need for improvement of his listening and auditory skills and would have required him to learn a new form of communication.” (emphasis added.) The district program emphasized sign language, which the student did not need to communicate and would possibly have resulted in regression of the student’s listening and speaking skills. The private program, however, provided the student with a free and appropriate public education, since it addressed his listening and auditory skills. Accordingly, the parents were entitled to reimbursement for the costs of the private program.
In Duarte Unified School District, 26 IDELR 351 (CA, 1997), the school district recommended placing an 11-year-old with a cochlear implant in a total communication program. Despite recommendations that the student required extensive therapy to learn how to use the Cochlear implant, the district only increased the amount of therapy by an insignificant amount. The parents objected to this placement and requested a more inclusive placement in an oral class and additional speech/language services. The hearing officer agreed that the proposed placement for the student was not appropriate. He concluded that the student required placement in a class that was primarily oral, in order to increase the student’s oral communication abilities and to increase the use of the cochlear implant. The school district was ordered to design a new IEP for
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the student which specified a more inclusive placement and at least three 60-minute sessions a week of speech/language therapy. The technology of cochlear implants is advancing rapidly in the medical field. As it advances, the needs of implanted children will be increasingly distinguishable from the needs of non-implanted deaf and hard of hearing children. There is no question that an implanted child who, early on, is provided with a “full immersion, high expectation” 100% oral program is far more likely to succeed in school and in hearing society. The “up front” investment in oral education for implanted children is small when compared to a lifetime of special services and accommodations. And the complete or near-complete elimination of the need for special education services – with full mainstreaming – is not only a worthy goal, but one mandated, where appropriate, by IDEA. In the case of implanted children, “success” could not be better defined.
There are cases in which the district prevailed, but each of these is distinguishable. In
Brougham v. Town of Yarmouth, 20 IDELR 12 (U.S. District Court, Maine, 1993), although the court held for the district, the distinct difference in the fact pattern explains the judgment. The parents removed their hearing-impaired 13-year-old son from the public school in Maine after he had been mainstreamed since he first entered public school in 1984. They unilaterally sent him to an out-of-state school for the deaf in Massachusetts and then expected full reimbursement. He had a hearing aid, instead of a cochlear implant. Also, this case dates back to 1993, which seems to be particularly outdated due to recent advancements in hearing technology.
In Bonnie Ann F. v. Calallen Independent School District, 20 IDELR 736 (U.S. District Court, Southern District, Texas, 1993), the district agreed to incorporate an oral approach and committed to discontinuing the use of all sign language techniques with the child. The parents disagreed with the placement. The district then agreed to place the child in an oral environment in the district. The parents rejected all of the options and pulled their daughter out of the school in the middle of the school year. They transferred her to a private school 300 miles away and asked for reimbursement from the district for the cost. The district prevailed due to the unreasonableness of the parents.
In Nicholas R. Petersen v. Hastings Public School, 20 IDELR 252 (U.S. District Court, Nebraska, 1993), a dispute arose from three hearing-impaired children who were taught modified sign language instead of exact sign language, which was what the parents wanted. The court held that the district had complied with the requirements of the IDEA providing an overall program designed to confer an educational benefit on each of the children. This, again, is an outdated case (1993) which contained nothing concerning cochlear implants or oral v. total communication programs.
In Unified School District 512, 22 IDELR 912 (Kansas state, 1995), the district proposed to place the child in a total communication program and the parents disagreed. Although the school district offered more pull-out time for speech and language services, more auditory training, and more mainstream time, the parents, who lived in Kansas, instead placed their child
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at the Central Institute for the Deaf in St. Louis, Missouri. Again, the court held for the district denying the parent’s request for reimbursement.
CONCLUSION
Our primary goal is for hearing-impaired children to no longer be excluded from mainstream society. Cochlear implantation has made this goal achievable so long as the implanted children get the appropriate educational services. Oral communication programs give hearing-impaired children the skills they need to function in mainstream society.
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MEMO To: Whitted, Cleary & Takiff, LLC Clients From: Brooke R. Whitted Date: June 11, 2002 Re: Autism/Lovaas – Samuel Tyler W. by next friends Harvey W.
and Debbie M., Plaintiff, v. Northwest Independent School District, Defendant (36 IDELR 236 U.S. District Court, Northern District Texas – April 22, 2002)
This is an appeal from the decision of a special education hearing officer in favor of the school district in a proceeding filed under the IDEA. The parents of the student claimed reimbursement from the school district for their Lovaas-based in-home training program, claiming that a failure to provide this reimbursement deprived their son of a free, appropriate public education.
The parents also claimed that the independent hearing officer was "predisposed" to rule in
favor of the school district because she had ruled in favor of school districts in 23 of the previous 30 cases she had decided. Finally, the parents claimed that the school district had violated the IDEA by failing to have a regular education teacher present at several of the IEP meetings.
Citing Board of Education v. Rowley, 458 U.S. 176 (1982), the Texas federal court saw its role as 1) determining whether the State had complied with proper procedures; and 2) whether the IEP was reasonably calculated to enable the student to receive educational benefits. The court noted that the free appropriate public education does not have to be the best one possible or one that “will maximize a student’s educational potential. The IDEA guarantees only a “basic floor of opportunity.” Background
At an IEP meeting in June 1999, plaintiff’s parents did not accept the educational instruction offered by defendant. They requested at least 25 hours of Lovaas-based weekly in-home training while the school district offered six hours. In February 2000, plaintiff’s parents filed their request for a due process hearing. Hearing Officer’s Decision The hearing officer found that the school district had complied with the procedural requirements of IDEA and had developed IEPs that allowed plaintiff “to receive educational benefits.”
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U.S. District Court Opinion The U.S. District Court first dismissed summarily the allegation of the parents that the Hearing Officer was predisposed to rule in favor of the school district simply because she had ruled in favor of school districts in 23 of the last 30 cases she had heard. The Court found that the argument “is entirely without merit.”
The federal court also dismissed as being without merit plaintiff’s allegation that the
school district had violated the procedural safeguards of IDEA by failing to have a regular education teacher present at several of the IEP meetings. The court noted that the student was not eligible for regular education services “due to his young age,” and that plaintiff “has no credible explanation for why the absence of such a teacher materially affected any of the proceedings.” (emphasis added)
The court rejected plaintiff’s assertion that “any procedural inadequacy, i.e., technicality,
will throw defendant out of compliance with IDEA and make it absolutely liable to fund plaintiff’s private education.” Rather, the court found that “only if the procedural inadequacies result in the loss of educational opportunity or seriously infringe the parents’ opportunity to participate in the IEP formulation process is FAPE [free appropriate public education] denied.”
The Court found that because plaintiff’s parents had removed him from school in favor of
Lovaas in home procedures, they did not give a "fair chance" to the school district. This is particularly true, according to the court, because the student did attend the pre-kindergarten program and, according to the court, received significant educational benefit.
The Court concluded by finding that the school district had complied with IDEA
procedures; that the IEPs were developed using proper procedures and were calculated to enable plaintiff “to receive educational benefits.” The decision of the Hearing Officer was affirmed and all claims for relief made by plaintiff against the school district were dismissed.
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Prepared by: Whitted, Cleary + Takiff, LLC
3000 W. Dundee Road, Suite 303 Northbrook, IL 60062
(847) 564-8662 (847) 564-8419 FAX Email: [email protected]
ATTORNEY FEES,
EXPERT FEES
AND COSTS IN
IDEA CASES
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ATTORNEY FEES, EXPERT FEES AND COSTS IN IDEA CASES Whitted, Cleary + Takiff, LLC
The Supreme Court of the United States in Arlington Central School District Board of
Education v. Murphy, 548 U.S. ____ (2006) held that the Individuals with Disabilities Education Act (“IDEA”), which does permit the recovery of attorney fees, does not authorize prevailing parents to recover expert fees from school districts. The IDEA Award of Attorneys’ Fees section reads as follows:
In any action or proceeding brought under this section, the court, in its discretion,
may award reasonable attorneys' fees as part of the costs--
(I) to a prevailing party who is the parent of a child with a disability;
(II) to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or
(III) to a prevailing State educational agency or local educational agency against the attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. 20 U. S. C. §1415(i)(3)(B)
Expert Fees
Parents of Joseph Murphy, a disabled student, prevailed in an action under IDEA in which they asked the school district to pay for their son’s private school tuition. The parents then sought reimbursement for the services of Marilyn Arons, an educational consultant who had helped the Murphys throughout the proceedings. The District Court awarded $8650.00 for the time Arons had spent assisting the Murhpys between the hearing request and the ruling awarding payment of the tuition, and the Second Circuit affirmed. Resolving a split among the Circuit Courts, the Supreme Court reversed, explaining that Congress enacted IDEA pursuant to the Spending Clause of the Constitution, which requires clear notice to states of any conditions attached to money a state might choose to accept. The statute’s fee shifting language does not provide clear notice that a state would be obligated to pay for expert fees. The “plain on its face” language only speaks of “reasonable attorneys’ fees.”
Previously, in November of 2003, a decision rendered by the U.S. Court of Appeals for
the Seventh Circuit, changed the law in Illinois regarding the parental right of reimbursement for expert fees when parents are prevailing parties, and clarified the law regarding reimbursement of attorneys fees in IDEA cases. T.D. v LaGrange School District No. 102, 40 IDELR 32 (7th Cir. 2003).
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Prior to this decision, case law in Illinois and the Seventh Circuit generally allowed parents who prevailed at due process the potential to seek reimbursement of any expert fees they paid as part of the due process hearing and preparation, including fees for independent evaluations and time for preparation and testimony at their child’s due process hearing. In T.D. v LaGrange, however, the Seventh Circuit forecasted the Supreme Court’s ruling in Murphy and decided to follow the lead of the Eighth Circuit, and preclude parents’ reimbursement of what they call “expert witness fees,” even when parents are clearly prevailing parties. In the T.D. case, the parents had argued that “expert fees” were part of the legislative intent behind the fee shifting provision contained within the IDEA. However, the Seventh Circuit disregarded that argument and quoted from an Eighth Circuit opinion in stating “there is no ambiguity in the statute,” and therefore “no occasion to look to the legislative history.” Attorney Fees
Prior to the Seventh Circuit’s decision in T.D. v LaGrange, many courts accepted the “catalyst theory” which allowed parents of disabled children to be awarded attorney fees if they were able to secure services through a mutual settlement agreement with their school districts. The parents received attorney fees because their actions served as a catalyst that led to the result the parents wanted – making the parents “prevailing parties.”
However, in Buckhannon Board & Care Home, Inc. v West Virginia Department of Health and Human Services, 532 U.S. 598 (2001), which involved the Americans with Disabilities Act and the Fair Housing Amendments Act, not the IDEA, the U.S. Supreme Court ruled that the “catalyst theory” lacked the “necessary judicial imprimatur,” (formal, published approval). Therefore, despite the fact that Plaintiff’s lawsuit was the reason or “catalyst” for a change in the state statute, it was not enough to confer “prevailing party” status. The Court concluded that only a consent decree, a settlement agreement ordered by the court, or an actual decision rendered could confer such status. Therefore, Buckhannon’s petition for attorney fees was denied.
While the Buckhannon decision did not specifically involve a claim under IDEA, many school districts around the country began arguing that because the Buckhannon opinion pertained to an administrative agency, that its definition of “prevailing party” should be extended to include all cases originating from administrative agencies, including IDEA cases. In T.D. v LaGrange, the Seventh Circuit held that school districts are not “prevailing parties” entitled to the reimbursement of attorney fees when there has been a settlement between the parties.
However, the Seventh Circuit’s opinion, like the Buckhannon decision, did provide one
caveat to collecting attorney fees in some settlement situations – if the settlement is not merely private (between two parties), but is filed and ordered through the courts, like a consent decree, then there is an argument that the parents might be considered “prevailing parties.” Of course, fees remain available to parents deemed prevailing parties through a due process hearing or court action.
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Impact
On one hand, it will now be more financially advantageous for parents to push cases to a full due process hearing instead of trying to reach a pre-hearing resolution, as their attorney fees would then be reimbursable if they prevail. However, it is extremely difficult for parents to prevail at a due process hearing without the aid of an experienced and credible expert witness. It addition, the IDEA limits a parent’s reimbursement of attorney fees in situations where the school district has offered a settlement agreement that would confer the same benefits a parent could receive through a due process decision, with the exception of attorneys fees and “expert witness fees.” In other words, if the district makes an offer and the hearing officer fails to order more than what was offered, parents are not entitled to fees. Lara A. Cleary, Esq. Tracy E. Kotlarz, Esq. Whitted, Cleary + Takiff, LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 847/564-8662; 847/564-8419 Fax www.whittedclearylaw.com
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WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road
Suite 303 Northbrook, IL 60062 Phone: 847-564-8662
Fax: 847-564-8419 Website: www.whittedclearylaw.comm
Email: [email protected]
SUSPENSION, EXPULSION
AND DISCIPLINE
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INTRODUCTION A recent New York City study found that while disabled children constitute thirteen percent of the student body, this minority percentage is responsible for 50.3 percent of violent incidents directed against staff. Almost all of these attacks emanate from the categories of autism and seriously emotionally disturbed children. Apparently with considerations such as these in mind, Congress has structured the 1997 amendments to the Individuals with Disabilities Education Act (“IDEA”) so as to encourage state boards of education to set aside dollars for the purpose of providing direct services to children, including alternative programming for children who have been expelled from school.31 It is ironic to observe that state education agencies now have, under §1411(g)(4) of the amendments, the authority to take money away from school districts that are currently doing a good job of providing a free appropriate public education (“FAPE”) to students and to reallocate it to those districts who are not. What follows is an attempt to make sense of a number of quite complicated provisions, some of which have been added for the first time to IDEA. A serious attempt has been made to write clearly and simply and to reduce the need for the repeated cross-referencing that is endemic to the amendments. An outline format has also been utilized, again for ease of reading - and citations to the relevant provisions are in footnote form. It is hoped that parents and educators alike will find this initial review helpful. I. Procedural Safeguards - 20 U.S.C. §1415 The types of procedures protected by the new IDEA have not changed very much. These include, among others, the following: A. The right to examine all records;32 B. The right to the appointment of surrogate parents for children who have no
known parents or whose parents cannot be located after reasonable efforts;33
C. The right to written prior notice whenever a school district 1. Proposes to initiate or change, or 2. Refuses to initiate or change, a placement34 3. Takes action, in any area related to the identification, evaluation, or
placement of children, or with regard to the provision of FAPE.35
31 20 U.S.C. §1411(f)(4)(A)(i). 32 20 U.S.C. 1415(b)(1). 33 20 U.S.C. 1415(b)(2). 34 20 U.S.C. 1415(b)(3)(A) & (B). 35 20 U.S.C. 1415(b)(3)(C).
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All notices to parents must be in the parent’s native language unless this is “clearly not feasible.”36
II. Administrative Due Process Hearings -20 U.S.C. §1415(f) A. Attorney Fees This section now contains a prohibition against fees for attorneys in IEP conferences unless these have been “ordered” by a hearing officer or judge. Moreover, a school district is entitled to reductions in fees in one or more of the following instances: 1. Where a parent unreasonably protracts the proceedings; 2. Where the attorney’s hourly charge exceeds prevailing rates; 3. Where the legal services provided were “excessive”; 4. Where an attorney fails to submit a proper due process letter on behalf of
the parents, which must contain the following information:
name of the child address of the child’s residence name of the school the child is attending description of the nature of the problem including “facts relating to
such problem” a proposed resolution of the problem “to the extent known and
available to the parents at the time” It should be noted that §1415(b)(8) mandates all state boards of education to develop model forms to assist parents in filing proper complaints should they choose not to utilize the services of an attorney.37 And, §1415(i)(3)(g) prohibits any reduction of attorney fees in favor of the school district where the state education agency or the school district “unreasonably protracted the final resolution of the action or proceeding.” III. New Discipline Provision/The “Current Educational Placement” - 20 U.S.C.
§1415(j) A. Introduction This provision has been changed substantially with respect to certain types
of children’s behaviors. The provision is essentially intact in that there is
36 20 U.S.C. 1415(b)(4). 37 However, enclosed as “Appendix A” is our rendition of what such a letter should look like.
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still a presumptive injunction enjoining school districts from changing the “current” educational placement during the pendency of all proceedings under the Act. However, new exceptions have been added at 20 U.S.C. §1415(k)(1)(A):
B. Placement Changes Allowed School officials may order a change for not more than ten days for a child
with a disability to the same extent as would be ordered for those who do not have disabilities and additional removals of not more than ten consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change in placement)38, and to an appropriate alternative education setting, “another” setting, or a suspension, for the same amount of time a child without a disability would be subject to discipline, but for not greater than 45 days,39
If:
a child carries a weapon to a school or school function, the term “weapon” being defined as:
A weapon, device, instrument,
material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade less than 2 ½ inches in length.40
-- OR --
the child knowingly possesses illegal drugs or sells or solicits the sale of a controlled substances while at a school or school
38 20 U.S.C. §1415(k)(1)(A)(i). 39 20 U.S.C. §1415(k)(1)(A)(ii). 40 21 U.S.C. §812(c).
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function.41 Additionally, the appropriate alternative educational setting must be determined by an IEP Team.42
-- OR -- The child has inflicted serious bodily injury [defined at 18
U.S.C. 1365(3)(h)] upon another person while at school, on school premises, or at a school function.
C. “Additional Actions” The above actions can only be taken commensurate with additional actions
outlined at 20 U.S.C. §1415(k)(1)(B), which require that either before or not greater than 10 days after taking one of the disciplinary actions, if the school district did not conduct a Functional Behavioral Assessment (“FBA”) and implement a Behavioral Educational Plan (“BEP”), the school district must convene an IEP conference to develop a FBA to address the behavior;43
-- OR -- D. Child Who Has a BEP If the child already has a BEP, the IEP Team still must meet and review it
for the purpose of modifying, if necessary, the IEP to address the behavior which is the subject of the disciplinary action.44
E. Self/Other Injurious Behaviors For likelihood of injury to self or others, a hearing officer can order a
change in the “current” placement to an Appropriate Interim Alternative Educational Setting (“AIAES”) for not more than 45 days if the hearing officer:45
41 20 U.S.C. §1415(k)(1)(A)(ii)(II). 42 20 U.S.C. §1415(k)(3)(A). 43 20 U.S.C. §1415(k)(1)(B)(i). 44 20 U.S.C. §1415(k)(1)(B)(ii). 45 20 U.S.C. §1415(k)(2).
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• determines the school district has shown that maintenance of the current placement is substantially likely to result in injury to the child or others;
• Considers the appropriateness of the current placement; • Considers whether the school district has made reasonable efforts to
minimize the risk including the use of supplemental aides and services;
• Considers whether the AIAES meets the requirements of paragraph 3(B) which states that reference to any alternative educational setting in which a child is placed by a school official (for weapons or drugs) or by a hearing officer (with respect to self or other injurious
behavior), such placement shall ALSO -
be selected so as to enable the child •• to continue to progress in the general curriculum,
although in another setting
-- AND -- •• to continue to receive all IEP services that will enable
the child to meet his IEP goals
-- AND -- •• shall include services and modifications designed to
address the behavior so it will not occur.46
F. Manifestation Determination Review (“MDR”) For children who fall into the above described behaviors [”any” behavior;
weapon/drugs; self or other injury] where disciplinary action is contemplated for these children, or if disciplinary action involving a change of placement for more than ten days is contemplated for a child with a disability who has engaged in “other” behavior that violated any rule of conduct of the school district that applies to all children:
46 20 U.S.C. §1415(k)(2).
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1. On the date the decision is made, the district must notify the parents of the decision and all required procedural safeguards. However, note that there is no indication in the Act how this notice must occur but only that it must occur on the date the decision is made.
2. “Immediately,” but in no case later then ten school days after the
date on which the decision to take action is made, a review shall be conducted of the relationship between the child’s disability and the behavior subject to disciplinary action.47 The individuals to carry out this review shall include the IEP Team and “other qualified personnel.”48 Moreover, the review shall be conducted by the IEP Team,49 including “other qualified personnel.” The IEP Team so commissioned can determine that there was no relationship between the disability and the behavior of the child only if that team:
first considers all relevant information, including:
• evaluative and diagnostic results including all
information supplied by the parents; • an observation of the child; • a review of the child’s IEP and current placement.
--- After which, the IEP Team then must determine that:
the IEP and placement were all appropriate and the following were all actually provided to the child:
• special education services; • supplemental aids and services; • behavior intervention strategies.
--- And that all of the services which were actually provided were consistent with the IEP and constituted the appropriate placement. 47 20 U.S.C. §1415(k)(4)(A)(ii). 48 20 U.S.C. §1415(k)(4)(B). 49 20 U.S.C. §1415(k)(C).
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Further, the IEP Team, in order to determine that there was no relationship between disability and behavior, must also find that the child’s disability did not impair his ability to understand the impact and consequences of the behavior subject to disciplinary action,50 and further that the child’s disability did not impair the ability of the child to control the behavior.51 After all of the above listed requirements have been met, according to §1415(k)(5)(A), if a review is conducted pursuant to all of the requirements and there is a “no manifestation” finding, the child may then be disciplined the same as any other child,
Except -- The child must continue to receive FAPE as required by IDEA at §1412(a)(1), which provides that states are only eligible to receive federal funds if they ensure that FAPE is provided and available to all children in the state age 3 to 21, including children with disabilities who have been suspended or expelled from school. G. Practical Considerations with Regard to Provision of Services During
Suspension and Expulsion As stated in the last section, the law has been changed to provide
that school districts must continue services even if there has been a suspension or expulsion, for all disabled children, even where an IEP has determined that there is “no relationship” between the disability and the behavior which is the subject of disciplinary action.
On May 30, 1997 the Congressional Research Service submitted a
document which painstakingly details the “intent of Congress” in amending this part of IDEA at Public Law 105-17. The memo was dated 5/30/97, just days before P.L. 105-17 was signed and tries to make the argument that the language of the statute runs counter to the “general intent of Congress” to provide more, not less, flexibility to schools in passing the law. The same memo, however, also indicates that the “plain meaning rule” might also apply. This rule provides that “where the words of a statute are clear and free from ambiguity, the letter of the statute may not be disregarded under
50 20 U.S.C. §1415(k)(4)(C)(ii)(II). 51 20 U.S.C. §1415(k)(4)(C)(ii)(III).
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the pretext of pursuing its spirit. Salvato v. Prudential, 480 A.2d 297, 1981. There is also a letter dated 9/4/97, subsequent to the passage of the amendment, from Judy Heumann from the Education Department, probably relying on the CRS memo and saying that the education department “interprets” the language of the statute not to require the provision of services within the first ten days of any suspension. However, she also goes on to add that this still might be “good practice.” Finally, a more detailed memo from the same individual as well as from Thomas Hehir, Director of OSEP, dated 9/19/97 utilizes the CRS memo and other sources to provide a Q&A document to state education officers. The ED takes the same position that the old Honig rules apply during the first ten days of suspension. Our position is that any test case on this issue will likely utilize the plain meaning rule and will determine that if Congress meant to say something other than what it actually did say in the plain meaning of the Act, it should go back and amend the Act. Thus, in practical terms, it is a better, safer and more conservative practice position to provide services of some kind during the first ten days of any suspension for any disabled child.
H. Other Considerations: Records Confidentiality Issues If a school district initiates disciplinary action applicable to all
children, it must transmit all of the child’s special education records to the “person making the final determination.” And, those persons must impliedly consider those records in making the decision.52
Further, another provision requires that any school district reporting
a crime must ensure that copies of the special education and disciplinary records are transmitted for consideration by the appropriate authorities to whom it reports the crime.53 Although this provision is explicitly intended to reverse some of the case law which held that a report to juvenile authorities is an arguable change of placement, the amendment goes too far and in fact would be a direct violation of the mental health confidentiality acts of many states. Certainly, any conveyance of “special education and disciplinary records” without proper consent of the parents and any minor age 12 to 18 would be a clear violation of the Illinois Department of Mental Health and Developmental Disabilities Confidentiality Act, thereby raising the possibility of an award of attorney fees and damages to the parents from the violating district.
52 20 U.S.C. §1415(k)(5)(B). 53 20 U.S.C. §1415(k)(9)(B).
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IV. What is the Current Placement During Appeals? When a parent requests a hearing to challenge a disciplinary action taken by a school district for weapons/drugs/risk of injury behavior, and this challenge involves a dispute as to the alternative educational setting chosen or the manifestation determination decision made, the child must remain in the alternative education setting until the expiration of the time period in the applicable paragraph, i.e., not more than 45 days.54
If a child is placed in an Alternative Educational Setting (“AES”) for weapons/drugs/risk of injury behavior and school personnel propose to change the placement after the expiration of the 45 day time period, during the pendency of any challenge to the proposed change, the child must remain in the alternative educational setting.
V. Protections for Children Not Yet Eligible for Special Education - 20 U.S.C.
§1415(k)(8) A. A child can invoke special education procedures, even if he or she is not yet
eligible for special education, if the school district had knowledge that the child had a disability before the behavior in question occurred. The basis of such “knowledge” is as follows:
1. The parent (if not illiterate) has expressed a concern in writing to
supervisory or administrative personnel, or a teach of the child, that the child is in need of special education services;
-- OR -- 2. The behavior or performance of the child demonstrates a need for
such services;
-- OR - 3. The parent has requested a an evaluation;
-- OR - 4. A teacher or “other school district personnel” have expressed
specific concerns about a pattern of behavior directly to the Special
54 20 U.S.C. §1415(k)(7)(A).
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Education Director or to other supervisory personnel of the local education agency.55 There are exceptions that let a school district off the hook:
Parent has refused services; Parent has not allowed an evaluation; The child has been evaluated and determined not to be a child
with a disability. B. If there is no “knowledge” found to be present, the child is subject to the
same discipline rules as others.56 However, if a request for an evaluation is made during the time the child is subjected to disciplinary procedures, the evaluation must be “expedited.”57 No time period is specified, however.
C. It should be noted that this case tracks with the Rodriceius v. Waukegan
District 60 case, a Seventh Appellate Circuit, 1996 case which involved a child who in a written confession admitted to stealing the principal’s master key and using it to steal from teacher’s desks. His DCFS worker, after the suspension, requested a Case Study Evaluation and the child’s attorney then requested due process, also invoking the “stayput” clause. The board expelled the child anyway four days later, but a week after that, the student filed suit in federal court to obtain an injunction to return to school. Two months later, the multidisciplinary conference held that the child was ineligible for services and the district court enjoined his removal while the appeal of the multidisciplinary conference decision was pending. By December of 1995, officers at both Levels I and II decided to affirm the school’s decision of ineligibility but the appellate court applied a “reasonable man” analysis and concluded that unlike other cases, there was no basis upon which the district reasonably could have known of a genuine disability. Here, the child’s grades were average and no one ever suggested a need for special education until the expulsion was pending. But the “reasonable man” requirement, as can be seen above, has been incorporated into the IDEA amendments.
55 20 U.S.C. §1415(k)(8)(B)(i)-(iv). 56 20 U.S.C. §1415(k)(8)(C)(i). 57 20 U.S.C. §1415(k)(8)(C)(ii).
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APPENDIX A
DUE PROCESS REQUEST FORM (to be hand delivered or sent by certified mail)
Date: _______________________ _______________________, Superintendent _______________________ _______________________ Re: (Name of Student, Age, Date of Birth) Dear Superintendent ______________: Please treat this correspondence as a formal request for a due process hearing pursuant to 105 ILCS 5/14-8.02(b), 23 Illinois Administrative Code §226.605(b), and 20 U.S.C. 1415(b)(7). I. Name of Child: The name, age, and date of birth of the child are stated above. II. Address of Child’s Residence: Address: ____________________________________________________ City/State/Zip: ____________________________________________________ Phones: ____________________________________________________ III. Name of School the Child is Attending: _____________________________________________________________________ _____________________________________________________________________ IV. Description of the Nature of the Problem, Including Facts Relating to the Problem: _____________________________________________________________________ _____________________________________________________________________ V. Proposed Resolution of the Problem to the Extent Known and Available at the Present Time: _____________________________________________________________________ _____________________________________________________________________ For the above listed reasons, it is our position that the district has failed to provide our child with a free appropriate public education as required by state and federal law. We will participate in state sponsored mediation efforts. Sincerely, _________________________________________ Parent(s)
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June 22, 2007 VIA FACSIMILE AND CERTIFIED MAIL Dr. George Fornero, Superintendent Township High School District 113 1040 Park Ave. West Highland Park, IL 60035-2283 Re: Sam Zuckerman, Age 16, DOB 3-24-91 Dear Dr. Fornero,
Please treat this letter as a formal request for a Due Process hearing pursuant to 105 ILCS 5/14 - 8.02 and 23 Illinois Administrative Code section 226.605(b) as well as 20 USC 1415(b)(7).
I. Name of the Child:
Sam Zuckerman, Age 16, DOB 3-24-91
II. Address of Child's Residence: Laura Zuckerman 1260 Taylor Avenue Highland Park, Illinois 60035
III. Name of School the Child is Currently Attending:
North Shore Academy 760 Red Oak Lane Highland Park, Illinois 60035 (847) 831-0603
IV. Description of the Nature of the Problem, Including Facts Relating to the Problem:
Sam Zuckerman (“Sam”) is a 16 year-old high school sophomore diagnosed with ADHD
and Mood Disorder NOS, for which he takes prescribed medications. Sam was adopted from Paraguay at approximately six weeks of age. Sam was a high-energy child who had difficulty controlling his anger.
At age 3, during preschool, Sam started showing signs of distractibility, social/behavioral issues, and he experienced significant behavior management issues.
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After consulting with several private professionals, Sam was diagnosed with ADHD at four years of age. Although a pre-school case study evaluation was conducted, the IEP team determined that Sam was age appropriate and concluded that he was not eligible for special education. During first and second grade, teachers reported that Sam was disruptive, inattentive and impulsive. In addition, he displayed poor social skills which were demonstrated by conflict with his peers.
Sam continued to display problems during this third grade year. Sam’s teacher raised
concerns regarding attention and academics. In addition, he reportedly bullied classmates and displayed a temper. In February of 2000, Ms. Zuckerman brought Sam to Learning Disability Specialist Barbara S. Rubin, M.A. for an educational evaluation. Ms. Rubin administered the WISC-III which revealed a Verbal IQ of 106, a Performance IQ of 95, and a Full Scale IQ of 101. Testing also revealed “[w]eaknesses in visual-motor integration, visual perception of part/whole relationship, visual closure, directionality, motor planning and visual memory.” Ms. Rubin reported that “[i]mpulsive responding and inconsistencies were noted throughout the testing. These weaknesses have impacted Sam’s academic abilities. He is functioning below grade level in reading (oral comprehension), math (geometry concepts, written calculation) and written language (mechanics). . . . Educational intervention is recommended to remediate the weaknesses noted and to develop compensatory strategies.” On June 2, 2000, after Ms Zuckerman shared Ms. Rubin’s evaluation with the district, it was determined that a case study evaluation would be conducted in the fall of 2000. During the fall of Sam’s fourth grade year, a case study evaluation was conducted. On October 3, 2000, Sam was found eligible under OHI (Other Health Impairment) for special education services. He was placed in the general education program with special education resource services ninety (90) minutes per week and social work services/counseling thirty (30) minutes per week. Sam continued to receive special education services throughout elementary and middle school. Sam did fairly well during his freshman year of high school with continued special education services, but deteriorated during his sophomore year. His grades began to decline, he began exhibiting angry outbursts, and he befriended gang members. In April of 2007, Sam was arrested for unlawful possession of ammunition and a firearm. He was released from juvenile detention on April 30, 2007, and was placed at North Shore Academy by District 113 for a forty-five (45) day diagnostic placement. According to his psychiatrist, Dr. Petronilo Costa, it was very important that Sam be placed in a school capable of monitoring his medications. Dr. Costa further stated in his report that Sam’s needs are too complex to be severable into discrete educational and noneducational components. In June 2007, private Social Worker, Matthew Selekman, completed a treatment summary. Mr. Selekman reported that Sam presents with serious impulse control, attachment
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issues, depression, impaired judgment and poor social skills. Mr. Selekman reported that Sam’s diagnoses include Intermittent Explosive Disorder, Depressive Disorder NOS and Oppositional Defiant Disorder. Mr. Selekman reported Sam is at great risk of harm to himself and others and that he has demonstrated increased out of control behavior. In addition, Sam functions like a much younger child by employing primitive defense mechanisms such as denial, splitting, and projection. Mr. Selekman made a strong recommendation for long-term residential treatment in order for Sam to learn mood management and social skills, resolve identity issues, tolerate frustration, develop impulse control, manage anger, establish meaningful and healthy relationships, and take responsibility for his actions.
On June 6, 2007, Sam’s IEP team met to consider the diagnostic information collected at
and to determine placement. Dr. Costa’s report was presented to the team during this meeting. The team determined that Sam met the criteria for Emotional Disturbance (“ED”) eligibility. The team reported that Sam has a very difficult time managing his feelings and has become violent and out of control when provoked by minor occurrences. Sam reportedly has acknowledged a desire to work on his anger problems. Sam reported that he originally became a gang member in order to “feel respected and accepted.” However, he now states that he would “do anything to get out of the gang life” and wants to do well in school and stay out of trouble. The team reported that Sam presents with at risk behaviors, poor judgment, social problems, and gang related behaviors, which warrant the implementation of a functional behavioral analysis (“FBA”) and a behavior intervention plan (“BIP”). The team felt that Sam exhibited these behaviors because he is unable to problem-solve effectively and engage in prosocial behavior. Sam also acts impulsively, feels rejected, and is paranoid.
Dr. Louis Kraus performed a psychiatric diagnostic evaluation for the District and reported, at the meeting, that Sam fits the criteria for ADHD and depression diagnoses. In addition, Dr. Kraus noted that Sam presents with minor depressive symptomatology, poor coping strategies, low self-esteem and a variety of identity issues in association with his ongoing ADHD symptomatology. Dr. Kraus reported that Sam presents with a lack of insight regarding his behavior and potential repercussions, which is of extreme concern and causes him to be in very at-risk situations. During a classroom observation, Dr. Kraus reported that Sam had difficulty focusing on assignments without one-to-one direct interventions. Dr. Kraus recommended “close monitoring” of Sam’s progress at North Shore Academy with serious consideration for residential placement in the event difficulties presented.
School psychologist John Dominguez performed the psychological assessment. Mr. Dominguez reported that Sam presents with limited social skills, impulsivity, and low self-confidence, which puts him at risk for continued conduct problems, poor judgment, and social problem-solving problems. In addition, Mr. Dominguez reported Sam is more likely than his peers to demonstrate ineffective or maladaptive interpersonal behavior. Despite Sam’s statement that he has tried to put his negative affiliations behind him, Mr. Dominguez reported that Sam’s tone, affect, and nonverbal behavioral gestures indicate a great deal of concern regarding retaliation for leaving the gang. Mr. Dominguez recommended treatment and skills training in the areas of social skills, behavioral issues and impulsivity.
School social worker Susan Smith reported that Sam presents with a significant level of
impairment regarding depression and interpersonal difficulties. Ms. Smith reported that Sam is at
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risk for criminal behavior and gang activity if he does not have strict interventions and support. Ms. Smith further reported that Sam benefits from a therapeutic environment.
Due to a time constraint, the team was not able to make placement recommendations and decided to reconvene on June 20, 2007. At the continued IEP meeting on June 20, 2007, Dr. Costa pointed out that Sam is running out of time, and that failure to place Sam now in a safe and appropriate residential setting will place Sam at substantial risk. The school district’s psychiatric consultant, Dr. Louis Kraus is also in conceptual agreement with the residential placement alternative. The only real disagreement relates to the timing. At this point, Sam and his mother cannot wait: according to Dr. Costa and Mr. Selekman, Sam needs residential placement now, or he will be at risk. V. Proposed Resolution of the Program to the Extent Known and Available at the Present
Time: Placement in a nonpublic residential facility that will meet Sam’s unique and complex needs. Also, retroactive reimbursement for the Red Cliff Ascent Wilderness program, described in a formal ten-day notice submitted to the Superintendent on May 25, 2007 and again on June 6, 2007 to district counsel (See, attached).
The family will waive a formal Resolution Session, as the IEP team has just convened and was not able to resolve the matter. However, the family agrees to participate in state-sponsored mediation. Please direct all correspondence to my attention.
Also, please be on notice that should the district fail to appropriately place Sam, Ms.
Zuckerman will have no choice but to implement her own placement for her son in an appropriate residential setting that will meet his needs. Please also treat this due process hearing request as your formal and continuing ten-day notice. We therefore request retroactive reimbursement for any and all costs incurred for an appropriate residential location subsequent to Sam’s short-term stay at the Red Cliff Ascent Wilderness program, during such time as this proceeding is pending. Sincerely, Brooke R. Whitted BRW:lmo cc: Ms. Laura Zuckerman
Nancy Krent, Esq. (by facsimile only)
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FEDERAL REGS ILLINOIS STATUTE
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Brooke R. Whitted WHITTED, CLEARY & TAKIFF, LLC
3000 W. Dundee Road, Suite 303 Northbrook, IL 60062
847/564-8662; 847/564-8419 (Fax) Email: [email protected] Website: www.wct-law.com
NON-CUSTODIAL PARENTS:
LEGAL ISSUES Who Has The
Authority To Do
What?
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NON-CUSTODIAL PARENTS
By Brooke R. Whitted I. Definitions What is custody? What is guardianship? What legal relationship does a stepparent have to a child who lives in the home? What is joint custody? All of these questions are asked on a regular basis by education professionals. The context varies: sometimes a residency question is involved. At other times, educators are attempting to unsnarl a complicated thicket of relationships just to figure out who has the authority to sign a form to release information or initiate services. The purpose of this memorandum is to inform the reader with respect to the latter quandary, using relevant statutory definitions as well as providing a tool with which to analyze whether an individual asserting that he or she has authority does, in fact, have that authority. The Illinois Probate Act defines "Guardian" as a legal representative of a minor.58 A "representative" is defined in the same act as a standby guardian, temporary guardian, and a guardian.59 These terms are defined by the Probate Act,60 as well as a comparatively new addition known as "short-term guardian,"61 which is:
§1-2.24. …. a guardian of the person of a minor as appointed by a
parent of a minor under Section 11-5.4, or a guardian of the person of a disabled person as appointed by the guardian of the disabled person under Section 11a-3.2.
The Juvenile Court Act contains perhaps the best and most comprehensive definitions:
(7) "Emancipated minor" means any minor 16 years of age or over who
has been completely or partially emancipated under the "Emancipation of Mature Minors Act", ...
(8) "Guardianship of the person" of a minor means duty and authority
to act in the best interests of the minor, subject to residual parental rights and responsibilities, to make important decisions in matters having a permanent effect on the life and development of the minor and to be concerned with his or her general welfare. It includes but is not necessarily limited to:
(a) the authority to consent to marriage, to enlistment in the
armed forces of the United States, or to major medical, psychiatric, and surgical treatment; to represent the minor in legal actions; and to make other decisions of substantial legal significance concerning the minor;
58 755 ILCS 5/1-2.08. 59 755 ILCS 5/1-2.15. 60 755 ILCS 5/1-2-23, et al. 61 755 ILCS 5/1-2.24.
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(b) the authority and duty of reasonable visitation, except to the extent that these have been limited in the best interests of the minor by court order;
(c) the rights and responsibilities of legal custody except where
legal custody has been vested in another person or agency; and
(d) the power to consent to the adoption of the minor, but only if
expressly conferred on the guardian in accordance with Section 2-29, 3-30, or 4-27.
(9) "Legal custody" means the relationship created by an order of court
in the best interests of the minor which imposes on the custodian the responsibility of physical possession of a minor and the duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care, except as these are limited by residual parental rights and responsibilities and the rights and responsibilities of the guardian of the person, if any.
(10) "Minor" means a person under the age of 21 years subject to this
Act. (11) "Parent" means the father or mother of a child and includes any
adoptive parent. . . . (13) "Residual parental rights and responsibilities" means those
rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship of the person, including, but not necessarily limited to, the right to reasonable visitation (which may be limited by the court in the best interests of the minor as provided in subsection (8)(b) of this Section), the right to consent to adoption, the right to determine the minor's religious affiliation, and the responsibility for his support.62 (All emphasis is added)
It also tends to be confusing to most people when conflicting statutory definitions are encountered. For example, the term "minor" is defined above in the Juvenile Court Act as anyone under 21, yet the Child Care Act defines "child" as follows:
§ 2.01. Child. "Child" means any person under 18 years of age. For
purposes of admission to and residence in child care institutions, group homes, and maternity centers, the term also means any person under 21 years of age who is referred by a parent or guardian, including an agency having legal responsibility for the person pursuant to the Juvenile Court Act or the Juvenile Court Act of 1987. Termination of care for such persons under 21 years of age shall occur no later than 90 days following completion of a public school secondary education program or the individual's eligibility for such a program.63
62 705 ILCS 405/1-3 63 225 ILCS 10/2.01.
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To add to the confusion, the Parental Responsibility Act defines "minor" as a person between the ages of 11 and 19!64 The same act also defines a "Legal Guardian" as follows:
(1) "Legal guardian" means a person appointed guardian, or given
custody, of a minor by a circuit court of the State, but does not include a person appointed guardian, or given custody, of a minor under the "Juvenile Court Act or the Juvenile Court Act of 1987".65 (Emphasis added)
The School Code, however, defines "parent" as "a parent or legal guardian of an enrolled student of an attendance center [for cities over 500,000]."66 However, for homeless children the School Code defines "parent" as "the parent or guardian having legal or physical custody of a child." (emphasis added)67 It is well established that in most circumstances for school purposes, there must be a court order or an actual, legal, or documented connection between the "parent" and the "child." A stepparent, for example, who shows up at a staffing and asserts that he or she has authority over the child must be questioned. Unless there has been an adoption, court-ordered guardianship, or other document that gives the stepparent legal authority, there is no authority. Likewise, in the case of a non-custodial parent who appears at a staffing or in the administrator's office and asserts authority over the child. At the very least, a non-custodial parent should sign a document certifying that he or she has the authority so claimed. II. Introduction to the Problem
The issue of what rights a so-called "non-custodial" parent has is cropping up
with increasing frequency. For example, in the case of Navin vs. Park Ridge School District #64,68 the non-custodial parent, who under the divorce decree only had a right to information and not concerning any educational decision making, requested a due process hearing demanding more services. The hearing officer dismissed the request on the basis that the father, as the requesting party, was the non-custodial parent and had no right to request a due process hearing. The District (trial) Court agreed and affirmed the decision of the hearing officer, but the Federal Appellate Court disagreed and remanded the case to the District Court for further proceedings. In this somewhat aberrant opinion, U.S. District Judge Conlon outlines the facts of the case, including the Appellate Court's order (to her) to readjudicate the case. She then concluded that she couldn't do anything until a hearing officer had actually made a determination of the non-custodial parent's claims of certain procedural violations. Therefore, the District Court judge who had the case remanded to her again remanded the case down to the hearing officer. The hearing officer was compelled to actually hold a hearing to examine
64 740 ILCS 115/2(2) 65 740 ILCS 115/2(1) 66 105 ILCS 5/34-1.1 67 105 ILCS 45/1-5 68 36 IDELR 235
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the non-custodial father's complaints and from which, if he is aggrieved, he would then have a right to again appeal to the District Court, and ultimately to the Appellate Court. Just from precedent set by this one case, then, Illinois hearing officers must consider procedural claims made by non-custodial parents even though the decree does not give them any right to determine educational programming. Our opinion is that this decision creates meaningless work in a very narrow area of non-custodial parent rights, however, now that the opinion exists, it must be followed. III. Questions to Ask in the Majority of Cases A. Source of Authority
If you are presented with potential custodial issues, you first need to
inquire as to the source of the authority claimed. Usually in domestic relations matters, there is a "decree" which includes a settlement agreement or court order that outlines the duties and responsibilities of the parties. This is always on file in a court clerk's office somewhere. If you are ever in any significant doubt with regard to the validity of the authority claimed by a parent, you always have the option of referring to the court file, which is open to public examination. The general rule of thumb here should be, "when in doubt, check the file." However, it is recognized that educators (a) don't have the responsibility to check every court file to verify the truthfulness of parents and yet (b) should have some documented basis for taking what the parent says at face value and moving forward. In this regard, we suggest the attached document entitled "Certification of Authority." Once this document is signed by a so-called non-custodial parent, as indicated in the document, a copy should be forwarded to the custodial parent. A cover letter should accompany the form, indicating to the custodial parent that if the school authorities don't hear from him or her within a week, the form will be accepted as truthful.
B. Type of Right Asserted
Non-custodial parent rights are divided into two areas: consent for services (in domestic relations, these are usually medical and educational) and consent for release of information. Generally speaking, pursuant to Illinois decisional case law in the mental health area, the non-custodial parent of a child under 12 has the right to the same flow of information as the custodial parent if he or she requests such in writing.69 However, for school records, which are governed by the Family Educational Rights and Privacy Act (FERPA)70, there is no such restriction on the child's age. Therefore, unless the decree states otherwise, the non-custodial parent does not have the authority to consent to the initiation or administration of medical or educational services. This is, of course,
69 Dymek v. Nyquist, 128 Ill.App.3d 859, 469 N.E.2d 659 70 FERPA, 20 U.S.C. § 1232g; 34 CFR Par 99
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another case for checking the decree which, in addition, can usually be provided by the parent who seeks information or consent authority.
1. Confidential Information:
a. School Information: In connection with educational information as defined in the Illinois
School Student Records Act, all you need is the consent of one parent, and generally speaking that should be the parent who has custodial authority over the child. For school information only, you do not need the signature of the child at any time.
b. Mental Health Information: This is governed by the Mental Health and Developmental
Disabilities Confidentiality Act71. Different rules apply to the release of mental health information and these are very specific. The attached form contains a second section, in the same document, for the release of mental health information only. It should be noted that where there is a need to block disclosure of information to any parent, whether custodial or non-custodial, and the information is "mental health" in nature, the refusal of any child age 12 to 18 to sign the form is enough to block the information in the absence of a court order for disclosure. For children below the age of 12, however, both non-custodial and custodial parents have the same right to the flow of confidential mental health information.
2. Services:
The issue of consent for services is more complicated. The decisional case law generally requires that the custodial parent authorize services. Cases have shown that when the non-custodial parent attempts to initiate services, the courts have invalidated the authorization. Thus, educators should take some steps to verify the authority of the custodial parent who seeks to authorize initiation, change, or cessation of services. Quite possibly, the attached Certification of Authority would be sufficient if there is any doubt. However, in cases with serious potential consequences, there is no equal to actually checking the court file. C. Incarcerated Parents
When the parent or guardian has been incarcerated, other issues may need to be considered. Depending on the offense, it is possible that the rights of the parent may have been terminated. If such is the case, then there might be a private guardian 71 While mental health files also are now subject to the Health Information Portability and Accountability Act (“HIPAA”), any mental health records related to students which are maintained in the student’s permanent or temporary school records fall under the Family Educational Rights and Privacy Act (“FERPA”) regulations, and are generally exempted from HIPAA regulations.
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appointed or, alternatively, the child may be a ward of the state. If the child is a ward of the state, the state guardian (DCFS usually, in Illinois) controls decision-making. If there is a private guardian, you can usually ask for the "letters of office" which should contain all of the guardian's duties, authority, and responsibilities.
It is also possible that an incarcerated parent may have retained parental rights, in which case it would be necessary to correspond with the parent, even though incarcerated, for the purpose of obtaining consents. Likewise, an incarcerated parent continues have the legal authority to consent to information disclosure unless parental rights have been fully terminated.
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MEMO To: Friends of Whitted, Cleary & Takiff LLC From: Brooke R. Whitted Date: 06/10/02 Re: Non-Custodial Parent Rights
I enclose the opinion in the case of Navin vs. Park Ridge School District #64. In this case, the non-custodial parent, who under the decree only has a right to information and not to any educational decision making, requested a due process hearing demanding more services. The hearing officer dismissed the request on the basis that the father, as the requesting party, was the non-custodial parent and had no right to request a due process hearing. The District Court agreed and affirmed the decision of the hearing officer, but the Appellate Court disagreed and remanded the case to the District Court for further proceedings in accord with the Appellate Court's conclusions. In this somewhat aberrant opinion, U.S. District Judge Conlon outlines the facts of the case, including the Appellate Court's order (to her) to readjudicate the case. The bottom line is that the Court says it can't do anything until a hearing officer has actually made a determination of the non-custodial parent's claims of certain procedural violations. Therefore, the District Court judge who had the case remanded to her again remanded the case to the hearing officer. The hearing officer is now compelled to hold a hearing to examine the father's complaints and from which, if he is aggrieved, he would then have a right to again appeal to the District Court. It should also be noted that the court was clearly annoyed with the father for representing himself in the proceedings and outlined how he was not able to conform his legal drafting with the court's rules. The upshot of all this is apparently that Illinois hearing officers must consider procedural claims made by non-custodial parents even though the decree does not give them any right to determine educational programming. Our opinion is that this decision creates meaningless work in a very narrow area of non-custodial parent rights.
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If you are faced with a due process request from a non-custodial parent, from here on in, this request needs to be fully processed and will probably need to be fully adjudicated by the hearing officer absent a settlement. In the past, most hearing officers simply dismissed non-custodial parents' due process requests, as this one did, to her peril.
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M E M O R A N D U M To: Clients From: Brooke R. Whitted; Lara A. Cleary Re: Short Term Guardianships - Outline of Provisions =================================================================
SHORT TERM GUARDIANSHIPS OF MINORS
1. Overview - 755 ILCS 5/11-5.4, 5/11-13.2 & 5/11-13.3
1. A short term (“ST”) guardianship is a private, short term appointment of a guardian of a minor for up to 60 days. The appointment is done without any court involvement, but can be done while the individual is initiating the formal legal procedure for guardianship.
2. Any parent may appoint a ST guardian for his/her child. Health or ability to care
for the child is not a consideration.
3. The ST guardian is guardian of the minor’s person only (care, custody, and control). However the ST guardian may apply for and receive benefits for the minor. The ST guardian may also enroll the child in school.
4. The minor must live with the ST guardian while the ST guardianship is effective.
2. Restrictions
1. 755 ILCS 5/11-5.4 (b) states:
A parent may not appoint a short-term guardian if the minor has another living parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, whose whereabouts are known and who is willing and able to make and carry out day to-day child care decisions concerning the minor, unless the nonappointing parent consents to the appointment by signing the written instrument of the appointment.
2. Also, if a guardian of the person has already been appointed by the Court a parent
cannot appoint a ST guardian. However the guardian can appoint a ST guardian.
Whitted, Cleary & Takiff, LLC 3000 W. Dundee Road, Suite 303
Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 Fax
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3. Requirements
1. Writing
1. A form for appointment of a ST guardian may be used.
2. Any other form or writing meeting the requirements set out in the Act may be used:
1. Writing must be dated; 2. The writing must identify the appointing parent or guardian, the
minor, and the person appointed to be ST guardian; 3. The writing must be signed, or at the direction of, the parent or
guardian making the appointment; 4. The writing must be signed in the presence of at least two
witnesses. The witnesses must be at least 18 years old and must not be the individual receiving the appointment. The witnesses signatures need to be contemporaneous with that of the person making the appointment;
5. The writing must be signed by the individual receiving the appointment indicating acceptance. However this signature does not need to be contemporaneous with that of the person making the appointment;
6. If being made by one parent the writing needs to also be signed by the minors other parent, if applicable.
3. Timeline and activation
1. The appointment will last for 60 days from the date the
appointment is effective, unless a shorter term is specified in the writing.
2. The ST guardian’s duties become active immediately upon
execution of the writing unless the writing provides otherwise or if the parent obtains an official guardianship change for the child by a court.
4. Revocation
1. The ST guardianship may be amended or revoked by the
appointing parent at any time and such intention may be communicated to the ST guardian in any manner.
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Brooke R. Whitted WHITTED, CLEARY & TAKIFF, LLC
3000 W. Dundee Road, Suite 303 Northbrook, IL 60062
847/564-8662; 847/564-8419 (Fax) Email: [email protected] Website: www.wct-law.com
FORMS
- P.O.A. to Appear for Parent
- Health Care P.O.A. Rider - Unilateral Placement
- Due Process - Client Authority for Due Process
- Release of Information - Protocols Release
- Homework for New Clients
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POWER OF ATTORNEY
POWER OF ATTORNEY made this ____th day of _(insert month)_, 2007. 1. I, _(insert name of child)_, hereby appoint (insert names of parents), who reside at (insert address), Illinois, as my attorneys-in-fact (my “agents”) to act for me and in my name (in any way I could act in person) to make any and all decisions for me concerning my education. It is my intention to include full authority by my agents to obtain access to all oral and written confidential mental health, school, and any other information concerning myself. I further intend to authorize my agents to grant consent for disclosure and exchange of such information, and I realize that I may revoke this grant of authority in writing at any time. My agents shall also have full authority to request any and all administrative remedies within any mental health, education, or rehabilitation system operational in Illinois, and in their sole discretion, to file for any judicial remedy where appropriate in any court of competent jurisdiction. 2. This power of attorney shall become effective on _(insert date)_, 2007, and shall apply whenever I am not available to make a decision or sign required forms to access services or information. 3. I am fully informed of the contents of this form and understand the full import of this grant of powers to my agents. Signed: _________________________________ (Insert name of child) The principal has had an opportunity to read the above form and has signed the form or acknowledged his or her signature or mark on the form in my presence.
Date: _______________ Accepted: _________________________________ (Insert Parent/Guardian name) Date: _______________ Accepted: _________________________________ (Insert Parent/Guardian name) Date: _______________ Signed: ___________________________________ Witness Printed name: ______________________________
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RIDER FOR: (NAME)______________________________________ STATUTORY SHORT FORM POWER OF ATTORNEY FOR HEALTH CARE
The undersigned intends for this document to apply to the following specific areas, in addition to the general powers intended: A. Administration of psychotropic medication, voluntary or involuntary; B. Voluntary or involuntary admission to a mental health facility;
C. In the case of minor females, grants of authority to apply birth control measures including Depo-Provera, the “patch,” or any other non-surgical form of birth control which would, in the sole discretion of the attorney in fact, serve the best interest and welfare of the minor female;
D. Consent for a continuing residential placement; E. Consent for any and all educational services, including evaluations. This
provision is intended to grant authority to the attorney in fact appointed by this document to consent to all educational services and to have access to any and all oral or written educational information pursuant to any state statute controlling education and special education records.
F. Full and complete access to all oral and written mental health information from any and all of my mental health professional and institutional providers.
G. Access under the Health Insurance Portability and Accountability Act (HIPAA) to any and all medical records, including mental health records, by my attorney in fact upon his or her written request. For this purpose, I understand that I have a right to directly inspect and copy any such records myself and by signing below it is my attention to fully assign this right to my attorney in fact.
H. All authority granted by this document is intended to be full and complete and without restriction. In addition, it is my intention by signing below that any scanned copies, facsimiles or photocopies of this document shall carry the same legal force and effect as though they were in the original.
SIGNATURE:___________________________DATE:________200____ WITNESS: _____________________________DATE________200____
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UNILATERAL PLACEMENT FORM LETTER (To be Sent to School Superintendent at Least 10 Business Days in Advance of Placement)
Date: __________________ Re: (Name and Age of Student): Written Notice of Intent to Place Disabled Child in Nonpublic Facility and Seek
Reimbursement from School District Pursuant to Public Law 105-17 at 20 U.S.C. 1412(a)(10)(C)(iii)(I)(bb)
Dear Superintendent: Please treat this correspondence as your formal written notification pursuant to the above captioned section of Public Law 105-17. We intend to place our above named child at the __________________ School [address, phone] on ___________, 19____. We will seek reimbursement of costs for that nonpublic facility from your district. As you are aware, Section 1412(a)(10)(C) states as follows:
(C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED IN PRIVATE SCHOOL WITHOUT CONSENT OF OR REFERRAL BY THE PUBLIC AGENCY. (...)
(iii) LIMITATION ON REIMBURSEMENT. The cost of reimbursement described in clause (ii) may be reduced or denied -- (I) if --
(aa) At the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
(bb) Ten business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in division (aa); ...
Please treat this correspondence as your formal 1412(a)(10) notice as required by that section. Sincerely, __________________________________ Parent(s)
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DUE PROCESS REQUEST FORM
(to be hand delivered or sent by certified mail) Date: _______________________ _______________________, Superintendent _______________________ _______________________ Re: (Name of Student, Age, Date of Birth) Dear Superintendent ______________: Please treat this correspondence as a formal request for a due process hearing pursuant to 105 ILCS 5/14-8.02(b), 23 Illinois Administrative Code §226.605(b), and 20 U.S.C. 1415(b)(7). I. Name of Child: The name, age, and date of birth of the child are stated above. II. Address of Child’s Residence: Address: ____________________________________________________ City/State/Zip: ____________________________________________________ Phones: ____________________________________________________ III. Name of School the Child is Attending: _____________________________________________________________________ _____________________________________________________________________ IV. Description of the Nature of the Problem, Including Facts Relating to the Problem: _____________________________________________________________________ _____________________________________________________________________ V. Proposed Resolution of the Problem to the Extent Known and Available at the Present Time: _____________________________________________________________________ _____________________________________________________________________ For the above listed reasons, it is our position that the district has failed to provide our child with a free appropriate public education as required by state and federal law. We will participate in state sponsored mediation efforts. Sincerely, _________________________________________ Parent(s)
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Authorization to File Special Education Due Process Request I have been advised by my lawyers, Whitted Cleary & Takiff LLC, that 20 USC 1400 §615(i)(3)(D)(ii) provides that a court may award attorney fees to a district against attorneys and/or their counsel when it is found that a complaint is frivolous, unreasonable, without foundation, or against parties who continue to litigate after the litigation clearly became frivolous, unreasonable, or without foundation. The same provision also states that a school district can be awarded attorney fees from a parent or parent’s attorney if the complaint was brought for “any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” We have also been informed that attorneys under Illinois Rule 137 must conduct independent due diligence or risk disciplinary sanctions. In this regard, we have fully cooperated with our attorneys in the performance of their due diligence; we have advised them of all facts relevant to the filing of the due process request that is attached hereto; and further, we have not withheld anything from them that might be relevant to the assertions contained in the attached request. Likewise, we have not inaccurately portrayed situations relevant to the request and we have been truthful in all respects with our attorneys in providing the information they needed for the purpose of filing the attached request. We sign this authority to submit a due process request having been fully apprised of the requirements in the law, having been fully forthcoming with our attorneys, and in light of the above described facts, herein by our signatures below do fully authorize our attorneys to file the attached request for hearing, on behalf of ourselves and our child.
_____________________________ ______________________________ PARENT PARENT
The above instruction was accepted in good faith from a bona fide client as an instruction to move ahead with filing the attached hearing request. _____________________________ __________________ ATTORNEY DATE
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CHILD
AUTHORIZATION FOR RELEASE OF CONFIDENTIAL AND PERSONALLY IDENTIFIABLE INFORMATION
We, the undersigned, do hereby authorize the release of any and all oral and written information concerning our child ___________ and our family from any public or private agency, including but not limited to those listed on reverse, to the Law Offices of Whitted Cleary & Takiff LLC, 3000 Dundee Road, Suite 303, Northbrook, Illinois 60062. The information requested below is being released for the purpose of assisting our attorneys in representing the best interests of ourselves and/or our child. We understand that we have the right to limit this consent and choose not to do so at this time.
This release authorizes disclosure of any and all oral or written social history, medical, academic, psychological, psychiatric, or educational planning and testing information, including psychological protocols where applicable. In the case of a mental health facility, the complete disclosure of medical chart and running record or patient log information is authorized. Medical chart information shall include but not be limited to intake and discharge summaries, nursing entries, medical reports, consultations, operating room logs, medication logs, or any other information relating to the above named minor and his/her family. We further understand our right to inspect, copy, challenge, and/or amend the subject records.
In the case of a mental health facility, we understand that should we refuse to sign this release, the requested information will not be disclosed. We understand that we have a right to inspect and copy all information, and that we have the right to revoke this authorization in writing. Being fully apprised of these rights, it is our intent that this release remain in full force and effect until revoked in writing by the undersigned parties, or until the expiration date indicated below, whichever comes first, in order that our attorneys can be fully informed on a continual basis without the necessity for repeated requests.
We further intend that carbon, FAX, photocopies, e-mail or any other form of electronic transmittal of this release shall have the same force and effect as the original, and shall apply to all records requested.
REDISCLOSURE: Notice is hereby given to the patient or legal representative signing the Authorization that party releasing records cannot guarantee
that the recipient receiving the requested information will not redisclose any or all of it to others. Notice is hereby given to the recipient that law prohibits the redisclosure of any health information regarding drug/alcohol abuse, HIV, and mental health treatment. PERSONS, AGENCIES OR ORGANIZATIONS TO WHICH THIS RELEASE IS DIRECTED: ILLINOIS STATE BOARD OF EDUCATION, 100 NORTH FIRST STREET, SPRINGFIELD, ILLINOIS 62777-0001; SCHOOL DISTRICT NO. ________, ________________________, ILLINOIS; SIGNED: XX ____________________________________, AGE: _____________ DOB: ____________________ SERVICE RECIPIENT IF 12 OR OLDER (MENTAL HEALTH ONLY) SIGNED AT ______________________________, ILLINOIS ON _______________________________, 20_____________. WITNESS:____________________________________ TITLE:_______________________________ AGE: ____________ X __________________________________________ X____________________________________________
PARENT OR GUARDIAN PARENT OR GUARDIAN EXPIRATION DATE: ______________________20_______
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PSYCHOLOGICAL PROTOCOLS RELEASE
THE ILLINOIS MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES CONFIDENTIALITY ACT STATES, IN PART:
Psychological test material whose disclosure would compromise the objectivity or fairness of the testing process may not be disclosed to anyone including the subject of the test ... However, any recipient who has been the subject of the psychological test shall have the right to have all records relating to that test disclosed to any psychologist designated by the recipient.
TO: ________________________________________
________________________________________
________________________________________
PHONE: __________________________________
RE: ___________________________________________, AGE _______ DOB: _________________ PLEASE FORWARD COPIES OF ALL PROTOCOLS AND SCORING SHEETS TO THE FOLLOWING LICENSED CLINICAL PSYCHOLOGIST: NAME: _________________________________________
ADDRESS: _________________________________________
_________________________________________
APPROXIMATE DATE TESTING WAS CONDUCTED: ________________________________ THIS CONSENT EXPIRES ON: _______________. I UNDERSTAND THAT I HAVE THE RIGHT TO REVOKE THIS CONSENT AT ANY TIME; AND THAT THE MATERIAL WILL NOT BE DISCLOSED IF I REFUSE TO SIGN. I INTEND THAT A PHOTOCOPY OR FACSIMILE OF THIS DOCUMENT SHALL CARRY THE SAME FORCE AND EFFECT AS THE ORIGINAL. DATE: ____________________ X _____________________________________________ SIGNATURE WHITTED CLEARY & TAKIFF LLC 3000 DUNDEE ROAD X _________________________________________ SUITE 303 SIGNATURE OF MINOR 12 OR OLDER NORTHBROOK, ILLINOIS 60062 PHONE: (847) 564-8662 X _________________________________________ FACSIMILE: (847) 564-8419 ADULT WITNESS
PROTOCOLS
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HOMEWORK FOR NEW CLIENTS 1. LIST OF ALL EXPERTS
Please supply a typed, alphabetical list of all clinicians, including physicians, social workers, psychologists, and other therapists or human services professionals who have had any contact whatsoever with your child. Please supply full phone numbers, area codes, first and last names, and accurate zip codes. The more complete the list, the less time will be charged against your retainer to look up the information!
2. RESIDENTIAL PLACEMENT - MENTAL HEALTH
Please contact Dr. Patricia Roy with the Illinois Department of Human Services/Office of Mental Health in Chicago [phone 773/794-4856] and request an application for an Individual Care Grant. This department is resistant to dealing with attorneys at the beginning of the process - so do not mention our involvement. Just request the application - you will receive a "financial questionnaire." You should fill this form out as to assets held by your child, not by you. Once the form is complete, please send it to DMH in a plain envelope and keep a copy. Do not reveal any information to DMH personnel concerning any other activities, such as negotiations with the school district.
3. RESIDENTIAL PLACEMENT/SCHOOL DISTRICT PLACEMENT
Please request, in writing, a copy of your child's records, and make sure you obtain these as soon as possible. Also, if you child is not enrolled, please see that this is accomplished immediately. Please talk to us about any further procedures.
4. CHRONOLOGY
Please try to jot down all relevant contacts with schools and professionals, if you can remember them. It helps you to organize your thoughts and it helps us in the formulation of the chronology. The following format is most helpful:
DATE
WHO WAS PRESENT
WHAT WAS SAID
WHAT WAS DONE OR PROMISED
5. Please make copies of ALL RELATED DOCUMENTS you have in your possession, and
send them to us as soon as possible. WHITTED, CLEARY + TAKIFF, LLC 3000 DUNDEE ROAD SUITE 303 NORTHBROOK, ILLINOIS 60062 PHONE: (847) 564-8662 FACSIMILE: (847) 564-8419
HOMEWORK
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OBTAINING APPROPRIATE SPECIAL EDUCATION
SERVICES FOR STUDENTS WITH EMOTIONAL DISTURBANCES:
RIGHTS AND
REMEDIES
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The distinction between "socially maladjusted" students and students classified with an
“Emotional Disturbance" (“ED”) for the purpose of special education eligibility is hard to determine at first glance. Under current decisional case law, a child determined to be emotionally disturbed is entitled to special education services, while children deemed simply “socially maladjusted” receive no special services. The IDEA definition of an emotional disturbance at 20 U.S.C. 1400 et.seq., as well as the definition in the Illinois Administrative Code has specific characteristics that must be manifest for a student to be considered eligible for special education services. Yet socially maladjusted children often exhibit similar behaviors. The purpose of this handout is to briefly review special eligibility for students with an emotional disturbance and to discuss some of the rights and remedies available to parents and guardians if their emotionally disabled child is denied special eligibility. I. WHO IS AN "ELIGIBLE" IDEA STUDENT? In order to be eligible for special education services under the category of “Emotional Disturbance” (“ED”) in Illinois, a child must be determined to have a condition exhibiting one or more of the following characteristics over a long period of time (chronicity) and to a marked degree (severity) that adversely affects a child's educational performance. The student must demonstrate:
An inability to learn which cannot be explained by intellectual, sensory, or health factors;
-or- An inability to build or maintain satisfactory interpersonal relationships with
peers and teachers; -or-
Inappropriate types of behavior or feelings under normal circumstances; -or-
A general pervasive mood of anxiety, unhappiness, or depression; -or-
A tendency to develop physical symptoms or fears associated with personal or school problems.
Therefore, to be determined eligible for special education under the category of Emotional Disturbance, the student must manifest at least one of the characteristics listed above for an extended period of time (chronicity) and to a marked degree (severity) and it must affect the student’s educational performance. The Illinois regulations specifically define educational performance as:
Educational Performance: A student’s academic achievement and ability to establish and maintain social relationships and to experience a sound emotional development in the school environment.
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II. HOW IS "SOCIAL MALADJUSTMENT" DEFINED?
"Socially maladjusted" has had many different definitions throughout the history of IDEA case law. In one of the most frequently cited case regarding this issue, Springer by Springer v. Fairfax County School Board, 134 F.3d 659 (4th Cir.1998), the court did not specifically define “social maladjustment” but instead indicated that the child in this case was not ED because his drop in educational performance was “directly attributable” to his behaviors, which included truancy, drug and alcohol use, and criminal activities. Moreover, the parents were unable to produce any satisfactory evidence that the child suffered any sort of “pervasive” “depression” or “sadness.” Therefore, the court felt that the child’s “delinquent behavior appear[ed] to be the primary cause of his troubles.” III. WHO IS ELIGIBLE? Ultimately, determining which children are actually "emotionally disturbed" is highly fact specific, and is not the same in every case. Every case ever brought to a due process hearing will have a child exhibiting some degree of inappropriate behavior. However, the frequency, intensity, duration, and context must be considered in determining the presence of an emotional disturbance. The utilization of mental health experts is critical. Many teachers would say that 10% to 20% of their students have "emotional problems" while the actual number of those with severe and or chronic problems is closer to 2% to 3% of the school age population. Currently less than one-half that number are formally identified and receive special education services. Robert H. Zabel, ERIC Digest #454 Emotional Disturbances; ERIC Clearinghouse on Handicapped and Gifted Children, Reston, VA (1988). A. Examples of a Finding of Ineligibility In Springer by Springer v. Fairfax County School Board, 134 F.3d 659 (4th
Cir.1998), the parents of an eleventh grader requested reimbursement for the unilateral placement of their child at a private facility. The hearing officer found their son's truancy, alcohol and drug problems were the result of a “social maladjustment,” not to an emotional disturbance. Three separate psychologists examined their son and all three stated he was not emotionally disturbed. His parents testified that he got along well with everyone, and it was ultimately determined by the hearing officer that his failing grades were related to his truancy and drug use, not his inability to learn. The court held that a "bad conduct" definition of an emotional disturbance might include almost as many students in special education as it excluded. Therefore, the Eighth Circuit ultimately upheld the decisions of the hearing officer and the district court, denying the parents reimbursement for the private placement.
Other language supporting the analysis in Springer can be found in
Hoffman v. East Troy Community School District, 38 F.Supp.2d 750 (E.D. Wis. 1999) where a district court determined that a school district was not in violation of its obligation under the IDEA to identify a student, whose most serious problems at the school were “a tendency to sleep in
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several classes and declining grades,” with an emotional disturbance. The court found that the drowsiness was directly attributable to the student working “long hours” at an after school job, and that while the student’s grades were poor, they were passing. In addition the court noted that the student was having problems at home, such as keeping the car out late and fighting with his parents, and that he had some “police contacts.” Finally the fact that the student was seeing a therapist for “depression” did not persuade the court that the school district should have been aware of a potential emotional disturbance.
B. Examples of a Finding of Eligibility
In Elgin Unit School District 46, 40 IDELR 82 (IL SEA 2003), parents were awarded the costs of a private residential placement by an Illinois hearing officer, based upon a finding that a school district had failed to identify a young woman with an emotional disturbance. In this case, all of the mental health professionals, including a psychologist hired by the school district, agreed that the child was emotionally disturbed, however the school district repeatedly refused special education eligibility. The school district argued that the student’s behaviors, which included running away from home, attempted suicide (which resulted in several psychiatric hospitalizations), promiscuous sexual behavior, school suspensions, school truancy and declining grades were a result of volitional behavior and did not warrant special education eligibility. Moreover, the school argued that the student’s declining grades were primarily a result of incomplete assignments and truancy, and not an inability to learn. Relying heavily on the mental health professionals who testified, the hearing officer stated “it is difficult to understand the apparent belief of the school district teachers and administrators that the student’s behavior was volitional and confined to the home setting.” She then ruled that the student should have been found eligible for special education services as a student with an emotional disturbance.
In Manhattan Beach Unified School District, 34 IDELR 249 (CA SEA, 2001), an administrative hearing officer ruled that the parents of a 16-year-old with serious emotional difficulties who was unilaterally placed in a private facility were entitled to reimbursement by the school district. In this case the student never had been found eligible for special education. When the student was in eighth grade she began exhibiting disturbing behaviors, and was ultimately hospitalized in a psychiatric facility following a suicide attempt. The school district found that the student did not meet the eligibility criteria for special education because, in the district's view, she was doing well academically. The hearing officer disagreed with the school district, finding that the student was seriously emotionally disturbed in light of the fact that she
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demonstrated a general pervasive mood of unhappiness and depression; exhibited characteristics of emotional disturbance for over 6 months; exhibited these characteristics in home, school and therapy environments; and was not achieving "mastery" in her classes -- her class work was sufficiently affected by her disability. The hearing officer concluded that because the school district did not find the student eligible for special education, it did not provide a free appropriate public education and ordered the school district to reimburse the parents for their unilateral private residential placement. See also New Paltz Central School District v. St Pierre, 307 F.Supp.2d 394 (N.D.NY 2003) for an excellent legal analysis of a child who was determined to be ED, not socially maladjusted as was argued by the school district and Independent School District No. 284 v. A.C., 258 F.3d 769 (8th Cir. 2001), where the Eighth Circuit affirmed reimbursement for a school district’s failure to identify a student exhibiting “truancy and defiance” with an emotional disturbance as her problems were not “separable from the learning process.” (distinguishing Dale M. v. Bd. of Ed. of Bradley-Bourbonnais H.S. Dist. No. 307, 237 F.3d 813 (7th Cir. 2001).)
IV. REMEDIES FOR FAILING TO IDENTIFY A STUDENT WITH AN
EMOTIONAL DISTURBANCE
A. Reimbursement for Private Placement
The most commonly utilized remedy pursuant to the IDEA for children denied special education eligibility by a school district is reimbursement for a unilateral private placement. The right to such reimbursement was first established in Burlington School Committee v. Department of Education of Massachusetts, 471 U.S. 359, 105 S.Ct. 1996 (1985).
1. The Burlington Case
Prior to the Burlington case, it was very difficult for advocates to argue on
behalf of parents that retroactive reimbursement was a remedy which might be available under IDEA. Nevertheless, in 1985, the Burlington case was decided. A few of the very unusual things about the Burlington case were that (1) it was a unanimous U.S. Supreme Court decision and (2) it was an opinion delivered by Justice Rehnquist. As some of the readers of this handout might be aware, unanimous Supreme Court opinions do not occur very often, and Justice Rehnquist was not known for his sympathies toward protected groups. These two factors make the Burlington opinion all that much more powerful.
The Burlington opinion involved a parents' unilateral placement in a
facility, in part during the pendency of proceedings under the IDEA. At the end of the case, since the district noted that the parent had only
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prevailed partially, the school district sought to be paid back for that period of time during which it felt it had "won" part of this six year case. The U.S. Supreme Court said that the "stay put" or "frozen placement" provision did not work two ways. In other words, the IDEA provision is parent oriented. Thus, it applies only where a parent, in an attempt to provide an appropriate educational setting for his or her child, effects a unilateral placement in an appropriate facility.
There was a caveat in the case. Where an appropriate education is shown
to have been made available by the district at the time the unilateral placement was made by the parent, the parent placement of the child in a non-public location is at parents’ own expense.
2. The Carter Case
Once the Burlington case was decided, legal luminaries in the field of
parent advocacy were pleased to advise their clients that this remedy was available, as long as the facility chosen by the parent “met the standards” of the state in which retroactive reimbursement is sought. In Illinois the state statute provides for the state board to maintain an "approved" list of placements which have met certain state standards. Not every state maintains an approved list. States do vary, but advocates did make attempts to steer their clients to "state approved" facilities.
In 1993, Justice Sandra Day O'Connor delivered the opinion in Florence
County School District Four v. Carter, 510 U.S. 7, 114 S.Ct. 361 (1993). In this case, the pupil in question, Shannon Carter, was classified as learning disabled in ninth grade in 1985 and the school's recommendation was regular education with three resource periods per week. The goal was to get Shannon to progress four months during the entire school year. The parents requested a hearing, and on both administrative levels, the independent hearing officers held that the IEP was adequate. Meanwhile, the parents had placed Shannon privately in a school for disabled LD students, but this school was not "approved" by the state and in fact did not even write Individual Education Plans. Shannon graduated from the school in 1988.
In 1986, two years before Shannon's graduation, the parents filed suit to
challenge the adverse administrative decisions. After a bench trial, the parents won. The court, in the process, appointed an independent expert to evaluate Shannon's progress and gave great weight to the findings. It was found that she had made "substantial progress" even though the school did not follow all of the state standards. For example, her reading levels rose three grades per year as opposed to the goals designated in the IEP.
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The appellate court affirmed that the private school was "appropriate," and that the parents were entitled to retroactive reimbursement. It should be noted in this case that the violations generally were not procedural but substantive in nature. A challenge to the substantive basis for the IEP becomes a battle of experts and it is best to use the most highly qualified and reputable experts that a parent can afford. An affiliation with a major center of learning also helps.
Holdings:
The Supreme Court, after reviewing the appellate court and trial records, delivered the following holdings: (1) that the IEP was inappropriate; (2) that the private school's program was reasonably calculated to enable the child to receive educational benefits under the Rowley72 test; and (3) that retroactive reimbursement to parents when an IEP is found to be inappropriate does not require placement in a state approved program.
In somewhat acidic tone, Justice Sandra Day O'Connor asked why courts
should leave the job of "approval" in the hands of the very agency that violated the plaintiff's rights in the first place.
This decision was unanimous, as was Burlington, which was heavily
quoted in the Carter decision. The case further held that Burlington grants parents a right of "unilateral withdrawal" and placement of their child in a non-approved private facility when a district's IEP is inappropriate. The Court explained that "approval" requirements do not make sense in the context of a parental placement. Note also here that the private school was in fairly severe non-compliance with any state standards. Two faculty members were not state certified, they didn't write IEPs, and the State of South Carolina kept no list of approved private schools but "approved" them on a case-by-case basis. However, it was pointed out by Justice O'Connor that public school officials previously had placed three children at the school.
The final holding of the Court is instructive. As support for the
proposition that parents need not seek state cooperation in the form of state approval of the parents' placement, she noted that "such cooperation is unlikely in cases where the school officials disagree with the need for private placement." Id., 114 S.Ct. at 366.
3. The 1997 Revisions to IDEA Limit Carter/Burlington Recovery
Section 1412(a)(10(C)(iii) of the IDEA mandates that to preserve the
parental right to seek retroactive reimbursement under the Burlington and
72 Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034 (1982).
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Carter cases, it is necessary that the district be notified at the “most recent IEP meeting” or letter (a writing) must be submitted to the district, at least ten business days in advance of actually placing the child, of parental intent to place. This means there must be some evidence that the district has actually received the correspondence, and further, the parent theoretically cannot place prior to ten business days having elapsed from date of receipt. The term “business day” includes any regular business day even though that might fall on a school holiday.
The Burlington and Carter cases have thus been limited by IDEA
reauthorization. This provision allows a hearing officer to reduce or completely deny reimbursement if the parents do not properly comply with their notification duties. For convenience, a sample notification form is attached, “Appendix I.” There are also specific exceptions to the notice requirement contained within the statute, which are:
► Parent is illiterate and cannot write in English; ► Compliance with the clause would likely
result in physical or serious emotional harm to the child;
► The school prevented the parent from providing the required notice;
► The parents have not received a written notice of their own obligation to provide notice under this section.
4. Example of Reimbursement When a School District Fails to Find ED
Eligibility
A good example of an Illinois hearing officer awarding private school reimbursement for a school district’s failure to appropriately identify a student with an emotional disturbance is the March 2002 impartial due process hearing decision in case of KJE vs. Oakwood Community Unit School District #76. 37 IDELR 59 (IL SEA 2002)
Facts: KJE had been diagnosed since October 1999 with a number of mental illnesses. In October of 1999, the parents of KJE reported to the school principal that their daughter had informed them that she had planned to kill herself. The principal failed to request or even suggest a case study evaluation for special education services or to offer any services whatsoever to KJE. In December 1999, KJE once again threatened to kill herself and also threatened to kill her mother after becoming violent with her parents. She was subsequently hospitalized and diagnosed with major depression. On December 31, 1999, KJE attempted to commit suicide a
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second time. She subsequently informed the school principal that she was continuing to have suicidal feelings. Soon thereafter, she made a third suicide attempt and was admitted to an inpatient psychiatric unit. After her third psychiatric hospitalization, KJE’s parents met with the school principal and informed her of the suicidal history of their daughter. The principal offered no services to KJE and did not refer her for a case study evaluation. At age 14, KJE was eligible to attend the school district's high school, which also refused to provide appropriate special education services. The parents were forced to home school KJE while they searched for an appropriate residential placement.
In November 2001, the school district conducted an IEP meeting to discuss special education eligibility and placement. Despite an overwhelming amount of evidence that KJE suffered from a severe emotional disturbance, the school district team decided that KJE was ineligible for special education services. During the session, the team's social worker presented a letter describing KJE as being a "very real risk to herself." But the team made no mention of KJE's four suicide attempts, history of psychotic behavior, or socialization problems, but instead stressed that she had received passing grades in 7th and 8th grade. In determining that KJE was not eligible for special education services, the meeting notes stated that it was not possible to determine an adverse effect on educational performance since KJE was not attending classes full-time at a regular education high school setting. The parents filed for a due process hearing and moved KJE to a residential facility.
Issues:
4. The school district claimed that KJE was not "seriously emotionally disturbed" and she was therefore not entitled to special education services.
5. The school district also claimed that KJE was not entitled to special education services because she was not failing her courses and was progressing from year to year.
Analysis:
The basic tenets of IDEA are that all applicable laws and regulations require a school district to demonstrate that it properly identifies the nature and severity of a student's suspected disability and offers the student a free appropriate public education in the least restrictive environment. In so doing, a district must act consistently with procedural safeguards. Part of these safeguards is that a school district has an affirmative duty to actively seek out and identify children in need of special education services.
The hearing officer in the KJE case emphasized the fact that the school was aware of KJE's suicide attempts, psychiatric hospitalizations, and
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telephone conversations that were made between the parents and the middle school principal and the school district's social worker.
The hearing officer, in determining that the student met the requirements of the definition of emotional disturbance, stated: "Had the local school district properly investigated the student's academic performance, it is clear to the hearing officer that an investigation would have led to the conclusion that the student met the requirements." The hearing officer rejected the school district's notion that because KJE was not failing academically, she did not meet the emotional disturbance criteria.
In KJE's case, it was clear that she had been seriously depressed, and that this depression had affected her behavior -- KJE had attempted suicide on four separate occasions. Furthermore, it was clear that this depression had affected her scholastic performance. She was not failing her academic courses only because she possessed higher cognitive ability.
The hearing officer rejected the notion that the school could ignore its knowledge of KJE’s suicidal tendencies and other serious emotional difficulties simply because she was not failing her academic courses, as this conveyed a profound ignorance of the regulatory definition. In the Rowley case, 458 U.S. 176, 102 S.Ct. 334, 73 L.Ed. 2nd 690 (1982), the U.S. Supreme Court noted that Amy Rowley was a deaf student who performed "better than the average child in her class and is advancing easily from grade to grade." 73 L.Ed. 2nd at 699. In fact, Amy was receiving A's and B's in her classes but under the IDEA, the school district nevertheless found her eligible for special education services. The Supreme Court ruled that while the education system does not have to maximize the potential of each handicapped child, the school system's commitment to children with disabilities requires that these children must have access to specialized education and related services. And, these services must be individually designed to provide significant educational benefits to each handicapped child.
A child cannot be excluded from special education services just because he or she is not failing academically. The Supreme Court stated: "We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a free appropriate public education. 73 L.Ed. 2nd at 1710. In general, the KJE case shows that knowledge by a school district of a student’s serious emotional difficulties is enough to require a case study evaluation and special eligibility. Moreover, a school district will be found liable should it choose to ignore these therapeutic problems simply because a child is progressing from grade to grade.
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B. Personal Liability of School Officials
Generally, monetary damages beyond compensatory education and reimbursement for a private placement are not available for IDEA violations. In the past, parents have had a great deal of difficulty maintaining Section 1983 claims, where more punitive type damages may be available, against school districts for IDEA violations. However, there are two relatively recent cases which establish that it is possible to assign personal liability to selected school officials when serious behavioral difficulties are known to the school district, but are ignored. In November 2000, the Superior Court in Connecticut awarded more than $67,000.00 to a special education student who was attacked by another special education student, based on the evidence that the assistant principal had reason to know of the potential harm to the victim. Kendall B. West Haven Department of Education, et. al., 33 IDELR 270 (Conn. Superior Ct , 2000). In this case, a special education student suffered from frequent harassment and bullying from another student. The student told his parents about the harassment, and they told him to inform school officials. The student told the assistant principal of the other student's actions, which included racial epithets, spitting, and pushing. The assistant principal stated that would take care of the matter, but she took no action. She did not inform other school officials and she left the premises for the day shortly after meeting with the student. Later that day, the student was attacked by the other student in the cafeteria. The student victim's head hit the floor, knocking out his two front teeth and breaking his jaw on both sides.
The court found that because the assistant principal was informed of the previous attacks, she had an affirmative duty to take action to prevent further attacks. The court noted that "the evidence unambiguously establishes that she did nothing." Given the nature of the inaction, the assistant principal was not shielded by the doctrine of governmental immunity. She knew of "likely imminent harm to an identifiable person," and was therefore liable for negligence.
In a Federal District Court action, a judge has ruled that a Santa Barbara high school district administrator was personally liable for damages under Section 1983 of the Federal Civil Rights Act for violating a mother's right to obtain a free appropriate public education for her special needs son, as required by IDEA. Goleta Union Elementary School District vs. Andrew Ordway, CD 99 – 07745 (CD CAL, verdict December 5, 2002). The mother of the special needs student alleged that the director of student services for the Santa Barbara High School District placed her son in a new school without investigating whether the new school met the student's special education needs.
The school official had moved for summary judgment, maintaining that she could not be held personally liable under Section 1983 for a violation of IDEA, because "mere negligence on the part of a government official is insufficient to support
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such a claim." The court held that a showing of heightened culpability is not required to establish a violation of IDEA -- "…all that is required to establish a Section 1983 claim is proof of a violation of IDEA under color of law." The court determined that the official denied the student a free appropriate public education by failing to offer him an appropriate placement. This official's conduct constituted a violation of IDEA. The court remanded the parent's request for monetary damages for trial.
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BROOKE R. WHITTED LARA A. CLEARY
WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road
Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 Fax
www.whitteclearylaw.com [email protected]
SCHOOL STUDENT RECORDS ACT
COLLECTION, MAINTENANCE,
INSPECTION, AND DISSEMINATION OF
STUDENT EDUCATIONAL RECORDS FOR REGULAR
AND SPECIAL EDUCATION STUDENTS
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COLLECTION, MAINTENANCE, INSPECTION, AND DISSEMINATION OF STUDENT EDUCATIONAL
RECORDS FOR REGULAR AND SPECIAL EDUCATION STUDENTS CAVEAT: A school student records policy must comply with the Family Educational Rights and Privacy Act of 1974 , the Illinois Student Records Act, and all regulations issued pursuant to such Acts and the rules of the Illinois State Board of Education. This document is an overview of the required contents of a school student records policy and compliance with the requirements stated herein may not satisfy all applicable laws. Therefore, it is advised that a school district consult an attorney before adopting a given student records policy. I. NOTIFICATION Upon initial enrollment or transfer of a student to the school, the school shall notify the student and the student's parents of their rights under the Illinois School Student Records Act, the Regulations thereto and the policies stated herein. II. OFFICIAL STUDENT RECORDS CUSTODIAN Each school shall designate an official records custodian who is responsible for the maintenance, care and security of all school student records, whether or not such student records are in his personal custody or control. The official records custodian shall take all reasonable measures to prevent unauthorized access to or dissemination of school student records. III. MAINTENANCE OF PERMANENT AND TEMPORARY RECORDS A. Information contained in or added to a school student record shall be limited to information which is of clear relevance to the education of the student. Information added to a school student record shall include the name, signature and position of the person who has added such information and date of its entry into the record. B. Each school shall maintain student permanent records and the information contained therein for not less than 60 years after the student has transferred, graduated or otherwise permanently withdrawn from school. C. No school shall maintain any student temporary record or the information contained therein beyond its period of usefulness to the student and the school, and in no case longer than 5 years after the student has transferred, graduated or otherwise permanently withdrawn from the school. Notwithstanding the foregoing, a school may maintain indefinitely anonymous information from student temporary records for authorized research, statistical reporting or planning purposes, provided that no student or parent can be individually identified from the information maintained. D. The principal of each school or the person with like responsibilities or his or her designate shall periodically review each student temporary record for verification of entries and
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elimination or correction of all inaccurate, misleading, unnecessary or irrelevant information. Student records shall be reviewed every four years or upon a student's change in attendance centers, whichever occurs first, to verify entries and to eliminate or correct all out-of-date, misleading, inaccurate, unnecessary or irrelevant information. E. Upon graduation, transfer or permanent of a handicapped student as defined in the School Code and 23 111. Adm. Code § 226, Subpart A (Special Education), psychological evaluations, special education files and other information contained in the student temporary record which may be of continued assistance to the student may, after five years, be transferred to the custody of the parent or to the student if the student has succeeded to the rights of the parents. The school shall explain to the student and the parent the future usefulness of these records. F. Before any school record is destroyed or information deleted therefrom, the parent shall be given reasonable prior notice in accordance with regulations adopted by the State Board and an opportunity to copy the record and the information proposed to be destroyed or deleted.
IV. RIGHT TO INSPECT RECORDS A. A parent or any person specifically designated as a representative by a parent shall have the right to inspect and copy all school student permanent and temporary records of that parent's child. A student shall have the right to inspect and copy his or her school student permanent record. B. Whenever access to any person is granted, at the option of either the parent or the school, a qualified professional, who may be a psychologist, counselor or other advisor, and who may be an employee of the school or employed by the parent, may be present to interpret information contained in the student temporary record. C. A parent's or student's request to inspect and copy records, or to allow a specifically designated representative to inspect and copy records, must be granted within a reasonable time, and in no case later than 15 school days after the date of receipt of such request by the official records custodian. D. The school may charge its reasonable costs for the copying of school student records, not to exceed $.35 per page.
V. DISCLOSURE OF RECORDS
A. No school student records or information contained therein may be released, transferred, disclosed or otherwise disseminated, except as follows: (1) To a parent or student or person specifically designated as a representative by a
parent;
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(2) To an employee or official of the school or school district or State Board with current demonstrable educational or administrative interest in the student in furtherance of such interest;
(3) To the official records custodian of another school within Illinois or an official
with similar responsibilities of a school outside Illinois, in which the student has enrolled, or intends to enroll, upon the request of such official or student;
(4) To any person for the purpose of research, statistical reporting or planning,
provided that no student or parent can be identified from the information released and the person to whom the information is released signs an affidavit agreeing to comply with all applicable statutes and rules pertaining to school student records;
(5) Pursuant to court order, provided that the parent shall be given prompt written
notice upon receipt of such order of the terms of the order, the nature and substance of the information proposed to be released in compliance with such order and an opportunity to inspect and copy the school student record and to challenge their contents pursuant to the procedures set forth in 105 ILCS 10/7;
(6) To any person as specifically required by State or federal law; (7) Subject to regulations of the State Board and to 23 Ill.Adm.Code §375.60 (1996),
in connection with an emergency, to appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons; or
(8) To any person, with prior specific dated written consent of the parent designating
the person to whom the records may be released, provided that at the time any such consent is requested or obtained, the parent shall be advised in writing that he has the right to inspect or copy such records in accordance with 105 ILCS 1015, to challenge their contents in accordance with the procedures set forth at 105 ILCS 10/7, and to limit any such consent to designated records or designated portions of the information contained therein.
VI. RELEASE OF RECORDS A. No information may be released pursuant to paragraphs (3) or (6) unless the parent receives prior written notice of the nature and substance of the information proposed to be released, and an opportunity to inspect and copy such records in accordance with 105 ILCS 10/5 and to challenge their contents in accordance with 105 ILCS 10/7. B. A record of any release of information pursuant to this Section must be made and kept as a part of the school student record and subject to the access granted herein. A record of any release of information must be made and kept as a part of the school student record and subject to the access granted by 105 ILCS 101/5. Such record of
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release shall be maintained for the life of the school student records and shall be available only to the parent and the official records custodian. Each record of release shall also include: (1) The nature and substance of the information released; (2) The name and signature of the official records custodian releasing such
information; (3) The name of the person requesting such information, the capacity in which such a
request has been made, and the purpose of such request; (4) The date of the release; and (5) A copy of any consent to such release. C. The school shall grant access to, or release information from, school student records without parental consent or notification: (1) To an employee or official of the school or school district or the state board of
education, provided such employee or official has a current demonstrable educational or administrative interest in the student and the records are in furtherance of such interest;
(2) To any person for the purpose of research, statistical reporting, or planning,
provided that no student or parent can be identified from the information released and the person to whom the information is released signs an affidavit agreeing to comply with all applicable statutes and rules pertaining to school student records.
VII. PROCEDURE FOR CHALLENGE TO RECORDS A. Parents shall have the right to challenge the accuracy, relevance or propriety of
any entry in the school student records, exclusive of (I)academic grades of their child and (ii) references to expulsions or out-of-school suspensions, if the challenge is made at the time the student's school student records are forwarded to another school to which the student is transferring. Parents shall be notified of their right to a hearing challenging entries made in the school student records.
B. The request for a hearing shall be submitted in writing to the school and shall
contain notice of the specific entry or entries to be challenged and the basis for the challenge. C. Each school shall establish administrative procedures for parents to challenge the
contents of student records. Such procedures shall include:
(1) An initial informal conference with the parents, within 15 school days of receipt of the request for a hearing.
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(2) If the challenge is not resolved by the informal conference, formal procedures shall be initiated.
a) A hearing officer, who shall not be employed in the attendance center in
which the student is enrolled, shall be appointed by the school. b) The hearing officer shall conduct a hearing within a reasonable time, but
no later than 15 days after the informal conference, unless an extension of time is agreed upon by the parents and school officials. The hearing officer shall notify parents and school officials of the time and place of the hearing.
D. The challenging procedures shall provide for a hearing at which each party shall have:
(1) The right to present evidence and to call witnesses;
(2) The right to cross-examine witnesses;
(3) The right to counsel;
(4) The right to a written statement of any decision and the reasons therefor;
(5) The right to appeal an adverse decision to an administrative tribunal or official to be established or designated by the State Board;
E. A verbatim record of the hearing shall be made by a tape recorder or a court reporter. A typewritten transcript may be prepared by either party in the event of an appeal of the hearing officer’s decision. However, a typewritten transcript is not required in an appeal. F. The written decision of the hearing officer shall, no later than 10 school days after the conclusion of the hearing, be transmitted to the parents and the school district. It shall be based solely on the information presented at the hearing and shall be one of the following:
(1) To retain the challenged contents of the student record;
(2) To remove the challenged contents of the student record; or
(3) To change, clarify or add to the challenged contents of the student record. G. Any party shall have the right to appeal the decision of the local hearing officer to the Regional Superintendent within 20 school days after such decision is transmitted. If the parent appeals, the parent shall so inform the school and within 10 school days the school shall forward a transcript of the hearing, a copy of the record entry in question and any other pertinent materials to the Regional Superintendent. The school may initiate an appeal by the same procedures. Upon receipt of such documents, the Regional Superintendent shall examine the documents and record to determine whether the school district’s proposed action in regard to the
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student’s record is in compliance with applicable law, make findings and issue a written decision to the parents within 20 school days of the receipt of the appeal documents. If the subject of the appeal involves accuracy, relevancy or propriety of any entry in special education records, the Regional Superintendent should seek advice from special education personnel. H. A final decision under the procedures established pursuant to 105 ILCS 10/7 may be appealed to the Circuit Court of the County in which the school is located. I. Parents shall also have the right to insert in their child's school student record a statement of reasonable length setting forth their position on any disputed information contained in that record. The school shall include a copy of such statement in any subsequent dissemination of the information in dispute.
