Education Team WHAT YOU DON’T KNOW ABOUT SPECIAL EDUCATION LAW CAN HURT YOU! - PowerPoint Presentation

Education Team WHAT YOU DON’T KNOW ABOUT SPECIAL EDUCATION LAW CAN HURT YOU! Kathleen S. Mehfoud Jason H. Ballum Patrick T. Andriano LaRana J. Owens Pakapon Phinyowattanachip Anne E. Witt Alan D. Bart Riverfront Plaza, West Tower 901 East Byrd Street, Suite 1700 Richmond, VA 23219 (804) 344-3400 @ reedsmithedlaw

Cases[Insert > Header and Footer to change footer text]

Seth B. ex rel. Donald B. v. Orleans Parish Sch. BdCase Facts:August 2011: Seth’s parents request an IEE and LEA approves the requestAt time of approval, LEA (1) provided parents with a list of qualified evaluators, (2) offered reimbursement up to $3000, and (3) informed family that the evaluation would need to comply with state-mandated evaluation criteriaApril 2012: LEA receives IEE evaluation report (not from an LEA approved evaluator)[Insert > Header and Footer to change footer text]

Seth B. ex rel. Donald B. v. Orleans Parish Sch. BdCase Facts:May 2012: LEA sends a letter to the family outlining 31 ways that the IEE report did not meet the state’s evaluation criteria and offering to meet with the family and evaluator. Parents do not respond December 2012: LEA gets a bill for $8,066.50 for the IEE February 2012: LEA rejects parents’ request for reimbursementApril 2012: Parents file for due process[Insert > Header and Footer to change footer text]

Seth B. ex rel. Donald B. v. Orleans Parish Sch. BdDOES THE IEE NEED TO BE PROVIDED AT PUBLIC EXPENSE?[Insert > Header and Footer to change footer text]

Seth B. ex rel. Donald B. v. Orleans Parish Sch. BdPOTENTIALLY YES!For those who thought definitely no, don’t feel bad……a due process hearing officer, a federal district court judge, and a federal circuit court judge agreed with you![Insert > Header and Footer to change footer text]

Seth B. ex rel. Donald B. v. Orleans Parish Sch. BdAt the due process hearing, the hearing officer found in favor of the school division and denied the parent’s request for reimbursement because the parents allegedly conceded that their IEE did not comply with the Division’s evaluation criteriaOn appeal, a federal district court agreed and upheld the hearing officer’s decision[Insert > Header and Footer to change footer text]

Seth B. ex rel. Donald B. v. Orleans Parish Sch. BdThe 5th Circuit Court of Appeals held, however, that the parents could be entitled to reimbursement for their IEE if the IEE report “substantially complied” with the state’s evaluation criteriaSubstantial Compliance = “insignificant or trivial deviations from the letter of agency criteria may be acceptable as long as there is substantive compliance with all material provisions of the agency criteria and the IEE provides detailed, rigorously produced and accessibly presented data.”[Insert > Header and Footer to change footer text]

Seth B. ex rel. Donald B. v. Orleans Parish Sch. BdThe case was sent back to the original hearing officer to determine whether the IEE report “substantially complied” with the state’s evaluation criteria. The court held, however, that parents would be limited to the $3000.00 cap.[Insert > Header and Footer to change footer text]

Independent Educational Evaluations (“IEEs”)Remember what the IDEA says about evaluation criteria: The criteria under which IEE (location of the evaluation, qualifications of the examiner, etc.) “shall be the same as the criteria that the LEA uses when it initiates an evaluation…To the extent those criteria are consistent with the parent’s right to an IEE.” 8 VAC 20-81-170(B)(2)(f)[Insert > Header and Footer to change footer text]

Seth B. ex rel. Donald B. v. Orleans Parish Sch. BdA judge on the 5th Circuit dissented, stating: “The majority’s decision to impose a judge-made standard on IEE reimbursements is deeply flawed. The majority cites not one single word in the IDEA or its accompanying regulations that point to the existence of a substantial-compliance standard for IEE reimbursement.” The 4th Circuit (which oversees VA) has not yet adopted a “substantial compliance standard.”[Insert > Header and Footer to change footer text]

F.C. ex rel E.C. and J.C. v. Montgomery Co. Pub. Schs.Case Facts:May 2012: Eligibility committee conducts a review of records (including the student’s last evaluation reports from 2009) and determines that new evaluation data is not needed in order to find that FC continues to be eligible as a student with a disability under the IDEA. January 2014: FC’s parents request a neuropsychological, speech, and occupational therapy IEEs. [Insert > Header and Footer to change footer text]

F.C. ex rel E.C. and J.C. v. Montgomery Co. Pub. Schs.January 2014: LEA offers to conduct a new, full evaluation of the student to include a psychological, educational, speech, and occupational therapy evaluation. Parents reject the LEAs offer.February 2014: Parents file for due process, alleging that they are entitled to an IEE because the school division had not evaluated the student since 2009.[Insert > Header and Footer to change footer text]

F.C. ex rel E.C. and J.C. v. Montgomery Co. Pub. Schs.DOES THE IEE NEED TO BE PROVIDED AT PUBLIC EXPENSE?[Insert > Header and Footer to change footer text]

F.C. ex rel E.C. and J.C. v. Montgomery Co. Pub. Schs.NO![Insert > Header and Footer to change footer text]

F.C. ex rel E.C. and J.C. v. Montgomery Co. Pub. Schs.The court held that a meeting to review the student’s existing data did not constitute an “evaluation” A review of existing data is not an evaluation because it does not involve a variety of assessment tools and strategies or technically sound instruments [Insert > Header and Footer to change footer text]

Timothy O. ex rel. Amy O. v. Paso Robles Unified Sch. Dist.Case Facts:June 2009: Child study meeting where student’s private pre-school informs school division that it will conduct a psychological assessment of Luke, potentially for concerns relating to autism.September 2009: LEA attempts to conduct its own evaluations but has difficulty evaluating Luke due to non-compliance during testing.[Insert > Header and Footer to change footer text]

Timothy O. ex rel. Amy O. v. Paso Robles Unified Sch. Dist.October 2009: LEA’s school psychologist informally observes Luke in his classroom to determine whether a disabling condition, such as autism, could be the reason why the student was non-compliant during testing with LEA staff.Based on his informal observation, the school psychologist advised staff outside of the IEP process that the LEA did not need to evaluate the student for autism. [Insert > Header and Footer to change footer text]

Timothy O. ex rel. Amy O. v. Paso Robles Unified Sch. Dist.December 2009: Student is found eligible as a student with a speech language impairment and an IEP is proposed. 2 days before the meeting, the LEA received a report obtained by the Student’s private preschool provisionally diagnosing Luke with “Pervasive Developmental Disorder, Not Otherwise Specified.” No evidence that IEP team reviewed evaluation report during the IEP team meeting.[Insert > Header and Footer to change footer text]

Timothy O. ex rel. Amy O. v. Paso Robles Unified Sch. Dist.2009-2010 School Year: During first year at LEA, Luke demonstrated aggressive and obsessive behaviors both at home and school. Luke’s mother asked his teacher whether Luke could be autistic and the teacher “assured Luke’s mother that he was not, but also suggested that Luke might make better progress in a more intensive program.” An IEP team meeting is not called.May 2010: LEA proposes placing Luke in a self-contained preschool classroom.[Insert > Header and Footer to change footer text]

Timothy O. ex rel. Amy O. v. Paso Robles Unified Sch. Dist.December 2010: Parents and teachers report during an IEP team meeting that Luke will not speak with adults or peers at school except occasionally whispering to peers. Further reports of tantrums and aggressive behavior. School psychologist reports (at the due process hearing) that based on these behaviors, he suspected the child could be displaying behaviors consistent with autism, but failed to report his suspicions to the IEP team during the December 2010 meeting.[Insert > Header and Footer to change footer text]

Timothy O. ex rel. Amy O. v. Paso Robles Unified Sch. Dist.January-February 2011: Parents provide the LEA with a new evaluation diagnosing Luke with autism.March 2011: LEA agrees to complete its own evaluation of the student for autism, but does not complete the evaluation until January 2012.[Insert > Header and Footer to change footer text]

Timothy O. ex rel. Amy O. v. Paso Robles Unified Sch. Dist.HOLDING9TH Circuit Court of Appeals held that the LEA’s failure to evaluate Luke for autism or autism-like behaviors violated the IDEA’s mandate that LEAs assess children for “all areas of suspected disability.”The 9th Circuit also held that the LEA’s failure to evaluate prevented the student from receiving FAPE because his IEP services were erroneously based on the team’s perception that Luke had a speech impairment, rather than autism.[Insert > Header and Footer to change footer text]

Timothy O. ex rel. Amy O. v. Paso Robles Unified Sch. Dist.SOME TAKEAWAYS:“School districts cannot circumvent [the responsibility to evaluate in all areas of suspected disability] by way of informal observations, nor can the subjective opinion of a staff member dispel such reported suspicion.”LEAs should not decline to do their own evaluation because the parent’s are obtaining outside evaluations.Be certain to document the consideration of outside evaluations during the course of an IEP team meeting.[Insert > Header and Footer to change footer text]

A.W. ex rel. H.W. and A.W. v. Middletown Area Sch. Dist.A.W. had anxiety disorder, social phobia, depression and absenteeism.School district did not implement A.W.’s Section 504 plan. Did not evaluate for an IDEA disability. [Insert > Header and Footer to change footer text]

Mother contacted school district on November 1, 2011 about her concerns.An IEP was not completed until December 14, 2012.Purpose of compensatory education services is “…to compensate a disabled child with education that an LEA improperly withheld under the IDEA.”[Insert > Header and Footer to change footer text]

School district ordered to provide compensatory education services seven hours for each day of missed servicespsychological therapy, and social and extracurricular services.The award of counseling was 134.5 hours. [Insert > Header and Footer to change footer text]

Fry ex rel. E.F. v. Napoleon Cmty. Schs.Service dog, Wonder, is a goldendoodle.[Insert > Header and Footer to change footer text]

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Assists with “retrieving dropped items, helping her balance when she uses her walker, opening and closing doors, turning on and off lights, helping her take off her coat, [and] helping her transfer to and from the toilet.”[Insert > Header and Footer to change footer text]

Denied permission for Wonder to accompany E.F. to school.Denial based on ability of an assistant to provide for E.F.Ultimately allowed a trial period.[Insert > Header and Footer to change footer text]

Wonder often restricted to the back of the classroom.School district ultimately concluded that Wonder was not needed.Parents home-schooled the student.[Insert > Header and Footer to change footer text]

OCR investigated and concluded that the refusal amounted to discrimination under the ADA and under Section 504.School then indicated it would allow Wonder to come to school.Parents concluded, after meeting with the principal, that the school district would make the return “difficult.”[Insert > Header and Footer to change footer text]

The parent filed suit in federal court under Section 504 and the ADA and sought money damages.Case was dismissed on the basis that the parents did not exhaust administrative remedies under the IDEA.[Insert > Header and Footer to change footer text]

Court held that a denial of FAPE is the sine qua non for finding a violation of the IDEAA hearing officer has no authority to order any relief other than for a denial of FAPE.Even if a complaint avoids the use of the terms IEP and FAPE, the court noted it could still implicate claims under the IDEA.[Insert > Header and Footer to change footer text]

Supreme Court laid down a two-part test. “First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library?” “And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance?” [Insert > Header and Footer to change footer text]

The court remanded for a determination as to whether the gravamen of the offense raised claims under the IDEA according to the new test.There was no allegation by the parents that E.F.’s education had been infringed upon and the attorneys had represented that there was no denial of FAPE.[Insert > Header and Footer to change footer text]

C.C., ex rel. Cripps, et al. v. Hurst-Euless-Bedford Indep. Sch. Dist., et al.CC, a student with ADHD, was transferred to an IAEP for 60 days as a result of his conduct.Took a picture of a student using the bathroom.[Insert > Header and Footer to change footer text]

An MDR was conducted and the conduct was not found to be a manifestation. The court concluded that there was no discrimination based on disability.[Insert > Header and Footer to change footer text]

The complaint alleged only that the ADHD “[r]esulted in CC having difficulty ‘Executing Functioning, which [a]ffects his ability to manage[e] his social environment, make good decisions and communicate in an appropriate manner.’”The court stated that “[i]f that conclusory statement were enough to plead discrimination, any plaintiff with ADHD could attribute any misconduct, no matter how severe, to the disability.”[Insert > Header and Footer to change footer text]

The fact that the criminal charges were subsequently dropped did not mean that the school district had to evaluate the student’s placement.[Insert > Header and Footer to change footer text]

Restraint and SeclusionNotice Requirements: School personnel shall make a “reasonable effort” to contact parent the day the incident occurred. Incident report completed within 2 school days and provided to the parent within 7 calendar days.School administrative review within 2 school days.IEP/504 meeting within 10 school days after 2nd day in which a restraint or seclusion was used.[Insert > Header and Footer to change footer text]

Restraint and SeclusionTraining Requirements: ALL school personnel receive initial training on:Positive behavior support, conflict prevention, de-escalation, and crisis response, regulations, policies, and procedures.Advanced training for at least one administrator in every school and staff who work with students determined likely to be restrained or secluded.IEP/504 team or principal makes determination. [Insert > Header and Footer to change footer text]

S.B. v. Bd. of Educ. of Hartford Cnty.S.B., a high school student with disabilities, was subject to bullying and harassment by other students. The school investigated each reported incident and, in almost every case, took disciplinary action against the offenders. For a six-month period, the school assigned a paraprofessional to escort S.B. during the school day to monitor his safety and act as a witness. S.B. and his parents filed a lawsuit, asserting that the Board discriminated against S.B. on the basis of disability, by failing to prevent student-on-student bullying and harassment. [Insert > Header and Footer to change footer text]

S.B. v. Bd. of Educ. of Hartford Cnty.The Fourth Circuit held that, in order to prevail, the plaintiff in a § 504 case of student-on-student harassment must show that: He was an individual with a disability; He was harassed by other students based on his disability; The disability-based harassment was sufficiently severe, pervasive and objectively offensive that it effectively deprived him of access to educational benefits and opportunities at school; andThe school board knew about the harassment and was deliberately indifferent to it. [Insert > Header and Footer to change footer text]

S.B. v. Bd. of Educ. of Hartford Cnty.The Court held that the Board did not react with deliberate indifference to the reports of harassment. The Court noted that the school investigated “every single incident of alleged harassment of which it was informed,” that it disciplined the offenders “in nearly every case.” The Court did recognize that not every “half-hearted investigation or remedial action will suffice to shield a school from liability.”Where a series of ‘verbal reprimands’ is leaving student-on-student harassment unchecked, then a failure to do more may amount to deliberate indifference. [Insert > Header and Footer to change footer text]

S.B. v. Bd. of Educ. of Hartford Cnty.Staff should be familiar with the Title VI, 504, Title IX Policies.Recognize, document, and report complaints.Including verbal complaints.Know the School Division Coordinators.Consider interim measures.Plan and conduct an “adequate, reliable, impartial, and prompt” investigation.Collect evidence.Issue report. [Insert > Header and Footer to change footer text]

S.B. v. Bd. of Educ. of Hartford Cnty.The report should include:Policy standard;Detail of investigation process; Narrative of facts;A determination of whether the allegations are substantiated; Whether this policy was violated; and Recommendations for corrective action, if any. [Insert > Header and Footer to change footer text]

Endrew F. v. Douglas Cnty. Sch. Dist. RE-1Endrew F. is a student with autism who attended public school through 4th grade. Teachers stated he had made progress in some areas, but parents disagreed and claimed 5th grade IEP was no different from prior IEPs. The parents enrolled Endrew in Firefly Autism House, where he immediately made progress. The parents filed for a due process hearing and asked for tuition reimbursement due to a denial of FAPE. [Insert > Header and Footer to change footer text]

Endrew F. v. Douglas Cnty. Sch. Dist. RE-1The hearing officer and federal court denied the parents’ request and found there was, at least, “minimal progress.” Tuition was denied. The Tenth Circuit affirmed, holding that FAPE had been provided because there was evidence to support a finding that Endrew made progress that was “merely…more than de minimus.” The issue before the Supreme Court was the establishment of a test for deciding whether FAPE had been offered. [Insert > Header and Footer to change footer text]

The Supreme Court rejected the “merely more than de minimus standard,” and held that providing just any educational benefit was not sufficient. The parents’ proposed standard of defining FAPE as “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded to children without disabilities” was rejected. “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[Insert > Header and Footer to change footer text]

What did we learn from Endrew:Rowley is still good law. The IDEA cannot and does not promise any particular outcome. Whether the IEP is “ reasonably calculated” to confer sufficient progress is judged on a prospective basis and on the student’s individual circumstances and needs. The adequacy of an IEP and the benefit for a student who can be educated in the regular classroom and achieve on grade level will be judged by examinations, grades and yearly advancement. For students who cannot be educated in the general education environment , their IEPs must be “appropriately ambitious.” [Insert > Header and Footer to change footer text]

Endrew F. v. Douglas Cnty. Sch. Dist. RE-1What did we learn from Endrew:Courts may not to substitute their judgment for the judgment of school authorities and that deference must be given to their judgment; but “A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Practice Tips:Staff Training. Know the child, your program, and how the program meets the child’s needs. Prior written notices. [Insert > Header and Footer to change footer text]

J.V. ex rel. Veldhuyzen v. Stafford Cnty. Sch. Bd.Student was initially found eligible under category of ID.Parent did not agree with the designation. So, she wrote that she “acknowledged” the eligibility decision but did not provide consent. Virginia regulations require written consent for eligibility determinations. The federal regulations do not.[Insert > Header and Footer to change footer text]

Parent sought to challenge the initial IEP.The hearing officer and, on appeal, the circuit court each dismissed the parent’s challenge to the IEP for failure to provide consent to the initial eligibility determination.The case was appealed to the VA Court of Appeals.[Insert > Header and Footer to change footer text]

The VA Court of Appeals held that the IDEA does not require a parent to consent to an eligibility determination in order to receive FAPE.“Simply put, a child’s entitlement to special education and related services cannot be contingent on parental consent to the eligibility determination.”The case was remanded to the circuit court for a hearing on the appropriateness of the initial IEP.[Insert > Header and Footer to change footer text]

B.C. ex. rel. J.C. v. Mount Vernon Sch. Dist.Parents of two unrelated students with IEPs sued the school district alleging disability discrimination under Section 504 and Title II of the ADA.They produced statistical evidence showing that IDEA-eligible students were up to 3 times as likely to be placed in noncredit courses as general education students. [Insert > Header and Footer to change footer text]

2d Circuit held:IDEA eligibility does not automatically create eligibility under Section 504 and the ADA.To prove disability discrimination, the parents needed to demonstrate that the IDEA-eligible students assigned to noncredit courses also qualified as individuals with disabilities under Section 504 and the ADA. The parents here failed to make such a showing. [Insert > Header and Footer to change footer text]

Different definitions of “disability”[Insert > Header and Footer to change footer text]IDEAA “child with a disability” has one or more of an enumerated list of impairments requiring “special education and related services.” 504 & ADAA physical or mental impairment that substantially limits one or more major life activities.

Different inquiries[Insert > Header and Footer to change footer text]IDEAWhether an impairment necessitates “special education and related services.”504 & ADAWhether an impairment “substantially limits” a major life activity.

Different ambitions[Insert > Header and Footer to change footer text]IDEASeeks to ensure the provision of special education benefits to qualifying individuals in public education. 504 & ADASeeks to curb discrimination against disabled individuals in major areas of public life, such as employment, public services, and education.

Dear Colleague LetterOn July 26, 2016, OCR issued a Dear Colleague Letter (DCL) reminding districts of their 504 & ADA obligations when it comes to students with ADHD.During fiscal years 2011-2015, OCR received over 16,000 complaints alleging disability discrimination. One in nine of those complaints involved allegations of discrimination against a student with ADHD.[Insert > Header and Footer to change footer text]

10 take-aways from the DCL:Must identify and evaluate any student who needs or is believed to need special education because of disability.Students who perform well academically can still be eligible.OCR presumes eligibility with ADHD diagnosis, unless there is evidence to the contrary. [Insert > Header and Footer to change footer text]

Medical assessments are not required, but must be provided if necessary and at no charge to the parent.RTI or other intervention strategies can’t delay evaluation. Don’t act on stereotypes and generalizations about ADHD.[Insert > Header and Footer to change footer text]

Consider the student in an unmitigated state, both in and out of school.Tailor services to student’s individual needs. 504 plan should be clear and detailed. If parent’s request for an evaluation is denied, provide notice and procedural safeguards rights.[Insert > Header and Footer to change footer text]

G.G. v. Gloucester Cnty. Sch. Bd.District Court (Trial Court)Held that the Text and Regulations of Title IX do not cover gender identityDid not give deference to DOE’s existing guidanceFourth Circuit (Court of Appeals)Resolved the case on the narrowest available grounds by deferring DOE’s guidance interpreting its own regulations that Title IX covers gender identity U.S. Supreme Court While case was pending before U.S. Supreme Court, DOE rescinded previous guidance documents Supreme Court has remanded the case for the Fourth Circuit to examine the statute and regulation without deference and “say what the law is.” [Insert > Header and Footer to change footer text]

G.G. v. Gloucester Cnty. Sch. Bd.Current Status:Case still pending in the Fourth Circuit to determine whether Title IX covers gender identityBriefs are due on June 2, 2017Argument expected in September 2017What is the law?Still unsettledAccording to the February 22, 2017 Dear Colleague Letter by DOE and DOJ:Rescinded previous guidance that says that the word “sex” under Title IX also covers gender identity“In addition, the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy ..” [Insert > Header and Footer to change footer text]

OCR – Website Accessibility CasesLessons Learned[Insert > Header and Footer to change footer text]

Letter to AndelSchool districts are required to notify parents who they will be inviting to an IEP meeting, including an attorneyParents, on the other hand, are not required to notify the school district they will be bringing an attorney to an IEP meeting.If a parent brings an attorney without notifying the school, the school can:Propose postponing the meeting until a later date and timeIF the parent agrees;AND the rescheduling does not result in a denial of FAPENote: this is unofficial guidance[Insert > Header and Footer to change footer text]

Lewis v. Scott Cnty. Pub. Sch. Bd. of Educ.A 20-year old high school student with cognitive delays accidentally dropped his tray in the lunch room.School staff members allegedly yelled at and restrained the student, who allegedly suffered physical and mental injuries as a result.Suing under the IDEA, the student’s parents sought damages.The federal district court dismissed the case in part because the IDEA “does not provide a cause of action for damages.” [Insert > Header and Footer to change footer text]