Looking at the Trees in the Forest Grove Decision

     Last week the Supreme Court ruled in Forest Grove v T.A., that the IDEA authorizes reimbursement of private school tuition to parents when: (1) the public school fails to provide appropriate special education services to the child; and (2) the private school program placement is appropriate. Importantly, this is true regardless  of whether the child previously received special education or related services from the public school. Thus, parents should not be faced with the choice of placing their child in an inappropriate program, before seeking appropriate services from a private school. 

     This decision, however, does not mean that parents may ignore the public school program, place their child in a private program without notice to the school district, and just send the district the bill for the private school tuition. Under this decision, which clarifies the IDEA regulations at 34 CFR 300.148(b), to be eligible for tuition reimbursement for a private school placement parents must establish that, before the student was placed in the private program, the school district did not make a free appropriate public education available to the student in a timely manner and that the private placement is appropriate. 

     For example, in the facts underlying the Forest Grovedecision, the student had difficulties in school from the time he was in kindergarten through his junior year of high school. His teachers often commented he had difficulty paying attention in class and completing his assignments. His difficulties in school worsened when he entered high school and he was evaluated by a school psychologist at the end of his freshman year. The psychologist reviewed his school records and administered some cognitive ability tests, but decided the student did not need further testing for learning disabilities or attention deficit hyperactive disorder (ADHD). Thus, the student was not found eligible for special education. While the family did not appeal the decision at that time, it was later found by the hearing officer that the school district evaluation was legally inadequate because it did not address all areas of suspected disability, including ADHD. 

     The student completed the following school year but his problems worsened during his junior year. The family sought private professional advice resulting in the student being diagnosed with ADHD and other disabilities related to learning and memory. Since the private therapist recommended a structured residential learning environment, the parents enrolled their son in a private academy for children with special needs. Then, four days after enrolling their son in the private academy, the parents gave written notice to the school district of the private placement. The parents later requested a due process hearing regarding their son’s eligibility for special education services. 

     While awaiting the hearing, the school district re-evaluated the student and again found him ineligible for special education services and did not develop an IEP. Since the district did not offer special education services the parents continued his placement in the private academy. At the conclusion of the hearing and after considering the testimony of numerous experts, the hearing officer decided that the student was eligible for special education services because his ADHD adversely affected his educational performance. 

     Thus, the hearing officer concluded the school district had violated the IDEA by not finding the student eligible for special education services and by not providing those services. Since the school district did not provide the student with a free appropriate public education and the private placement was appropriate, the hearing officer ordered the school district to reimburse the parents the cost of the private school tuition. 

     To reach that result (to establish that the school had failed to offer an appropriate program and the private placement was appropriate), the parents bore the cost of a private evaluation, the cost of placement in a private school, the cost of an attorney and the experts who testified at the hearing, and the emotional wear and tear of the judicial process. The financial pressure may lessen because, as the prevailing party, the parents should be entitled to attorney’s fees.

     The Supreme Court, however, did not determine the amount of tuition that should be reimbursed to the family. Instead, the Court  remanded the case to the district court to decide the amount of tuition reimbursement. The IDEA provides a number of factors that may result in the cost of tuition reimbursement being reduced or denied. While Congress  authorized  tuition reimbursement in the IDEA, Congress also wanted to ensure that school districts knew that parents were not satisfied with the public school program so that school districts had an opportunity to resolve the problem before parents placed their child in a private school.  Thus, the IDEA provides at 34 CFR 300.148(d) that, before removing their child from the public school, parents notify the school district that the parents are rejecting the school district’s placement and they intend to place their child in a private program at public expense. Parents may provide that notice at an IEP meeting or, as in the Forest Grove scenario, in writing. 

     The amount of tuition reimbursement may also be reduced  if the school district asks the parents to consent to reevaluate the student  before the child is removed from the public school program and  and the parents refuse. The Supreme Court remanded the case to the district court to consider these factors in determining the amount of tuition to be reimbursed to this family. 

     In conclusion, I believe this is a wonderful decision for the educational rights of children with disabilities. If a public program is inadequate, parents should not be faced with the choice of placing their child in that program before seeking placement in a private program. But, as the family in Forest Grove found, it is likely to be an uphill battle to establish both the inadequacy of the public school program and the appropriateness of the private placement 

Supreme Court Rules the IDEA Authorizes Private-School Tuition Reimbursement

     Today, by a 6 to 3 vote, the Supreme Court ruled in Forest Grove School District v T.A. that the IDEA authorizes tuition reimbursement for private school special education services if the school district does not offer an appropriate public program, even though the student hadn’t previously received special education services through the public school.

     School districts had argued that parents must first give public school programs a chance before placing a child in a private program and seeking tuition reimbursement. But parents and advocacy groups had strongly argued that parents should not be required to place a child in an inappropriate program and see the child fail, before seeking an appropriate private program.

      Writing for the majority of the Court Justice Stevens said: “We conclude that IDEA authorizes reimbursement for the cost of special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.”

Supreme Court Nominee Judge Sonia Sotomayor and Disability Law

 

           The Bazelon Center for Mental Health Law has provided a valuable service by producing a Preliminary Review of Disability Cases of Judge Sonia Sotomayor. That review provides a fairly in depth analysis of Judge Sotomayor’s decisions in disability cases. The review identifies twenty eight cases involving disability law and, if you’re just keeping score, Judge Sotomayor decided in favor of the person with a disability in twenty of the twenty eight. The cases listed include cases involving the Americans with Disabilities Act (ADA), Section 504, the Individuals with Disabilities Education Act (IDEA), Social Security, Medicaid, and Protection and Advocacy System access to schools to monitor seclusion and restraint.

            A few cases are of particular note.

     Judge Sotomayor dissented from the other judges holding in EEOC v. J.B. Hunt Transportation, Inc., 321 F. 3d 69 (2d Cir. 2003) that the plaintiffs, applicants for truck driving jobs, did not have disabilities. The case was brought under the ADA by truck driving applicants who were denied jobs based on their use of certain disability related prescription medications. The majority of the court ruled that though the applicants were denied the jobs because they were perceived as unsuitable to be over-the-road truck drivers, they were not perceived as having disabilities. The majority judges did not connect the link between being denied a job due to the use of disability related prescription medication and being denied the job due to having a disability. Judge Sotomayor disagreed: “Thus, the EEOC has provided sufficient evidence that a fact finder could reasonably conclude that Hunt regarded the rejected applicants as substantially limited in the major life activity of working, because Hunt regarded them as unfit to be truck drivers.”

      In Bartlett v New York State Bd. of Law Examiners, 970 F. Supp. 1094 (S.D.N.Y. 1997), while in federal district court Judge Sotomayor ruled in favor of a law license applicant with a learning disability. Due to having a learning disability, the applicant had difficulty reading and requested accommodations such as extra time on the bar exam. The accommodations were denied because the examiners did not believe she was limited in the major life activities of reading or working.  Judge Sotomayor determined Ms. Bartlett was limited in the major life activity of working eloquently stating:

 “For those of us for whom words sing, sentences paint pictures, and paragraphs create panoramic views of the world, the inability to identify and process words with ease would be crippling. Plaintiff, an obviously intelligent, highly articulate individual reads slowly, haltingly, and laboriously. She simply does not read in the manner of an average person. I reject the basic premise of defendants’ experts that a learning disability in reading can be identified solely by a person’s inability to decode, i.e., identify words, as measured by standardized tests, and I accept instead the basic premise of plaintiff’s experts that a learning disability in reading has to be identified in the context of an individual’s total processing difficulties.”

      Judge Sotomayor ruled Ms. Bartlett was entitled, under the ADA, to the accommodations on the bar examination.

      In, Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2d Cir. 2006), an IDEA case I discussed in a previous posting, Judge Sotomayor agreed with the Second Circuit panel that the parents’ unilateral placement of their child in a private school was appropriate. The parents were entitled to tuition reimbursement and they were not required to keep their child in a public school placement until it was clear that the child had actually failed and a year wasted. This is similar to the issue in the Forest Grove case recently heard by the Supreme Court but, as yet, undecided.

      Finally, in Connecticut Office of Protection & Advocacy v. Hartford Bd. of Education, 464 F.3d 229 (2d Cir.2006), Judge Sotomayor wrote an opinion granting Protection and Advocacy (P&A) Systems for Persons with Mental Illness, like my agency, access to school programs to monitor abuse and neglect of students. The Connecticut P&A System had received complaints that students at a public school had been subjected to the inappropriate use of physical restraint and seclusion at school. Federal law authorizes P&A Systems to have access to programs providing disability services to investigate complaints of abuse and neglect of persons with mental illness and other disabilities. Judge Sotomayor’s decision clarified that since the schools provide a therapeutic educational program to students with emotional disabilities; the P&A has access to that program and has access to the contact information of parents or guardians of the students in the program. The benefits of granting P&A access to schools can be seen in the recent NDRN report regarding the inappropriate use of seclusion and restraint in schools. This report was based on the investigative work in public schools of P&As throughout the country.

     To be sure, Judge Sonia Sotomayor has not always ruled in favor of the person with a disability in the case before her. Cases should not be decided based on the disability or other status of the litigants. Cases are decided by determining the facts and applying and interpreting the law to the facts. Frankly, I was very moved by her eloquence in the Bartlett decision determining that reading as a life skill:

     “For those of us for whom words sing, sentences paint pictures, and paragraphs create panoramic views of the world, the inability to identify and process words with ease would be crippling. Plaintiff, an obviously intelligent, highly articulate individual reads slowly, haltingly, and laboriously.”

     Based on these words and the analysis provided by the Bazelon Center, I believe Judge Sotomayor will be a fine Supreme Court Justice.

 

 

Toileting Assistance in Child Care and the ADA

     After my  post yesterday on Child Care and the ADA I received a very good question regarding child care programs providing assistance with toileting for children with disabilities who use “pull ups”. The question also raised issues regarding serving older children with disabilities who needed toileting assistance or diapering with much younger children. I thought the issue merited an additional post.

     The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against persons with disabilities. Title III of the ADA prohibits discrimination by privately operated public accommodations. Private child care providers are covered by Title III. 

     Whether the ADA requires a child care program to provide toileting assistance to a child with a disability generally depends on whether the program provides diapering or toileting assistance to children without disabilities. Many programs provide toileting assistance to younger children. If the program provides toileting or diapering assistance to younger children, it must also provide that assistance to older children with disabilities, when the staff do not have to leave other children unattended to provide that assistance. If an older child needed toileting assistance because of having a disability, it would NOT be appropriate for the child care provider to generally serve the older child along side younger children. The older child with a disability should be included in an age appropriate program with peers close to the child’s own age. 

     Moreover, the child care provider must also provide toileting assistance or diapering to young children with disabilities who may need it more often than other children their age. Generally, toileting assistance is considered a “personal service” under the ADA and usually not a required service. But, as noted in the examples above, child care providers must consider modifying their policies if a child needs toileting assistance due to a disability. Some children with disabilities need assistance transferring to and from the toilet. Helping children with disabilities transfer from the toilet is not a “personal service” and is required. If a child care provider is required to provide toileting assistance or diapering to a child, it cannot charge an additional fee for that service. 

     Child care programs that do not diaper or provide toileting assistance to any children must still consider modifying that policy to assist children with disabilities. The Department of Justice in its publication Commonly Asked Questions About Child Care and the ADA says: 

     “To determine when it is a reasonable modification to provide diapering for an older child who needs diapering because of a disability and a center does not normally provide diapering, the center should consider factors including, but not limited to, (1) whether other non-disabled children are young enough to need intermittent toileting assistance, when for instance, they have accidents; (2) whether providing toileting assistance or diapering on a regular basis would require a child care provider to leave other children unattended; and (3) whether the center would have to purchase diapering tables or other equipment. If the program never provides toileting assistance to any child, however, then such a personal service would not be required for a child with a disability.” (emphasis supplied) 

     The Department of Justice, however, goes on to say that even if toileting assistance is not required, the program cannot exclude a child from the program if other arrangements could be made such as a parent or personal assistant coming in and providing the assistance. 

     In summary, if the program provides toileting assistance or diapering to younger children, it will likely be required to provide that assistance to older children with disabilities.

 

The ADA and Child Care

           In my last post I discussed Title III of the Americans with Disabilities Act in the context of Justice Department Sues Private School Chain for Discriminating Against Children with Disabilities. This provides additional information regarding the ADA and child care.

          Title III of the ADA covers privately-run child care centers, just as it covers other privately-run public accommodations such as private schools, recreation centers, restaurants, hotels, movie theaters, banks, etc. (see the definition of place of public accommodations at 28 CFR 36.104). Moreover, child care services provided by government agencies (including school districts) such as summer programs and before and after school programs must also comply with Title II of the ADA and Section 504. I will discuss Title II and 504 extended day services in a later post.

          Under Title III child care providers must provide children and parents with disabilities with an equal opportunity to participate in the child care center’s programs and services. To that end, centers must make reasonable modifications to their policies and practices to integrate children and parents with disabilities into their programs. Modifications must be made unless the modification would cause a fundamental alteration in the program.

          Additionally, child care providers must provide auxiliary aids and services that are needed for effective communication with children or adults with disabilities unless providing the aid or service is an undue burden on the program. Examples of auxiliary aids and services include:

Qualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed captioned decoders, open and closed captioning, TDDs, videotext displays, qualified readers, taped texts, audio recordings, Brailled materials, and large print materials.

          Finally, child care providers must make their facilities accessible to persons with disabilities. That means (1) existing barriers must be removed if it can be done without significant difficulty or expense and (2) newly constructed facilities and altered portions of existing facilities must be fully accessible.

          This is a basic overview of Title III’s application to child care centers. For more information the Department of Justice has an excellent document that discusses Commonly Asked Questions About Child Care and the ADA. Among other things that document addresses:

1.     Not excluding children with HIV or AIDS;

2.     Serving children with severe allergies (also see the Department of Justice (DOJ) Settlement Agreement with La Petite Academy);

3.     Serving children diabetes and the obligation of the provider monitor blood glucose (also see the DOJ Settlement Agreement with Kindercare);

4.     Providing assistance to children with mobility impairments in putting on and off leg or foot braces;

5.     Serving children who need diapering (also see the DOJ Agreement with Sunshine Child Center).

 

Justice Department Sues Private School Chain for Discriminating Against Children with Disabilities

     Last Wednesday April 29th the U.S. Justice Department announced that it had filed suit in U.S. District Court in Philadelphia against Noble Learning Communities Inc. (Nobel). The Justice Department alleges that Nobel violated title III of the Americans with Disabilities Act (ADA) by excluding children with autism spectrum disorder and other disabilities from its schools and programs. 

     The Justice Department complaint identifies children with disabilities who were denied admission to or removed from Nobel schools in several states. Nobel is a network of more than 180 private preschools, elementary and secondary schools in fifteen states. The schools operate under various names including Chesterbrook Academies, Bethesda Country Day School and Merryhill Schools. The Nobel chain also provides summer programs and child care services. 

     “All parents want their child to have the opportunity to reach his or her full potential,” said Loretta King, Acting Assistant Attorney General for the Civil rights Division. “The Justice department will vigorously enforce Title III of the ADA to ensure that children with disabilities have full and equal opportunity to participate in academic and non-academic activities.” 

     Title III of the ADA prohibits public accommodations, including private schools, from excluding individuals with disabilities from programs or services offered by the public accommodation. Under Title III private schools must make reasonable modifications to allow an individual with a disability a full and equal opportunity to participate in or benefit from the programs and services offered by the school. The Department of Justice advises that parents or guardians who believe their child may have been discriminated against on the basis of disability should contact the Justice Department’s Civil Rights Division.

Supreme Court to Hear Tuition Reimbursement Case: Forest Grove v. T.A.

     On April 28, 2009, the Supreme Court will hear oral argument in Forest Grove v. T.A. The issue is whether the school district can be required under the IDEA to reimburse parents for private school tuition when the school had not previously recognized the student’s need for special education. 

     The case involves a family in Oregon who withdrew their son from the Forest Grove School District because they believed he was not receiving an appropriate education. During his freshman year the student was referred for an evaluation to determine if he had a learning disability under the IDEA. The team, however, determined that he did not have a learning disability and was ineligible for special education services. At the time his parents did not disagree with that determination. During his sophomore year the student began having difficulties and eventually ran away from home. As a result he was taken to see a psychologist who diagnosed him as having ADHD, depression, math disorder, and cannabis abuse. The psychologist also recommended that he attend a residential program. Thus, his parents enrolled him in Mount Bachelor Academy, a private residential school, and the parents also requested a hearing to require that the Forest Grove School District evaluate him for special education eligibility. 

     As a result, the school district’s multi-disciplinary team determined that the student had ADHD and depression. They did not, however, find him eligible for special education services under the IDEA because the team concluded his ADHD and depression did not have a severe enough effect on his educational performance. 

     This led to the parents requesting a due process hearing. The hearing officer ruled that the boy was eligible for services under the IDEA and Section 504; that the school district had not offered an appropriate program; and that the school district was responsible for the costs of the private school, Mount Bachelor Academy. The school district appealed to U.S. District Court, arguing that tuition reimbursement was inappropriate because the student had been unilaterally withdrawn from school without notice to the school district and he had never received special education services from the district. The District Court ruled for the school district, but the 9th Circuit Court of Appeals ruled for the parents and reinstated the hearing officer’s decision. 

     The Supreme Court accepted the case for review and oral argument will be heard April 28th. The Court had previously heard a similar case in 2007(see my post Supreme Court Affirms Tuition Reimbursement for Private School Placement). In that case Justice Kennedy recused himself, and the other justices affirmed by a four to four vote a decision allowing a father repayment of private school tuition. 

     In Forest Grove v T.L. the issue that the Supreme Court is deciding is:

     Whether the IDEA permits an award of private-school tuition reimbursement when a child with a disability has been denied a free appropriate public education, but has not “previously received special education and related services under the authority of a public agency,”

     Of course the school district and parents have filed briefs before the Court. But a number of entities have filed friend of the court briefs. Briefs in support of the parents include: the U.S. Department of Justice and the National Disability Rights Network. Briefs in support of the school district include: The New York School Boards Association  and the National School Boards Association.

 

 

 

 

 

 

 

 

 

OCR Updates Information Regarding 504 and the Rights of Students with Disabilities to Include Changes under the ADA Amendments Act

     Last fall the Americans with Disabilities Amendments Act was passed and signed into law (please see my post President Signs ADA Amendments Act of 2008). The ADA Amendments Act broadened the definition of disability under the ADA and Section 504. In particular it prohibited the consideration of mitigating measures when determining whether an impairment substantially limits an individual’s major life activities. The Office for Civil Rights (OCR) within the US Department of Education has recently revised a document that addresses Frequently Asked Questions about Section 504 and the Education of Children with Disabilities to reflect those changes. (For a general overview of 504 and students with disabilities please see my post Opening the School Door to Section 504.) 

     In the revised document OCR  clarifies that, as of January 1, 2009, when school districts determine whether a student has a disability under 504 school districts “must not consider the ameliorating effects of any mitigating measures the student is using.” 

     The document goes on to state that Congress did not define the term mitigating measures but provided a non-exhaustive list of examples of mitigating measures: medication, medical supplies, equipment or appliances; low vision devices (not including ordinary eyeglasses or contact lenses); prosthetics (including limbs and devices); hearing aids and cochlear implants or other implantable hearing devices; mobility devices; oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; and learned behavioral or adaptive neurological modifications. 

     For example, a student who has epilepsy, but whose seizures are generally controlled by medication, is considered a person with a disability under Section 504 regardless of the mitigating effects of the seizure medication. Or, a student who is hard of hearing, but can hear by using a hearing aid, is considered a person with a disability, regardless of the mitigating effect of the hearing aid. 

     The Frequently Asked Questions about Section 504 and the Education of Children with Disabilities document is a good technical overview of 504 and students with disabilities and this revised version provides helpful guidance on the broader definition of disability under the ADA Amendments Act.

The IDEA and the American Recovery and Reinvestment Act 2009

     The American Recovery and Reinvestment Act 2009 (ARRA) provides significant new funding for services for children with disabilities under the IDEA’s Parts B and C.  These additional IDEA funds are provided under three authorities: (1) $11.3 billion for IDEA Part B grants to states (2) $400 million under Part B Preschool Grants to States (children ages three to five) and (3) $500 million for Part C Grants for Infants and Families (children with disabilities from birth through age two). 

          The Department of Education plans to move quickly, awarding half of this additional IDEA funding by the end of this month, March 2009, and the other half by October 1, 2009. The funds are in addition to the regular Fiscal Year 2009 Part B grants to states. You can find information about each state’s allocation at http://www.ed.gov/about/overview/budget/statetables/recovery.html. 

          This additional IDEA funding is expected to be temporary and available for only one to three years. The Department of Education, therefore, expects that states and local education agencies will use the funds for “short-term investments that have the potential for long-term benefits…” Examples of possible uses of these funds include: 

• Obtaining state-of-the art assistive technology devices and providing training in their use to enhance access to the general curriculum for students with disabilities. 

• Providing intensive district-wide professional development for special education and regular education teachers that focuses on replicating proven innovative strategies in reading, math, writing, and science, and positive behavioral supports to improve outcomes for students with disabilities. 

• Developing or expanding the capacity to collect and use data to improve teaching and learning. 

• Expanding the availability and range of inclusive placement options for preschoolers with disabilities by developing the capacity of public and private preschool programs to serve children with disabilities. 

• Hire transition coordinators to work with employers in the community to develop job placements for students with disabilities. 

          This information is based on fact sheets issued on March 7th by the Department of Education regarding implementing the American Recovery and Reinvestment Act of 2009. Please note that in the second bullet above, I emphasized using using the funds to provide professional development regarding positive behavioral supports. It has been my experience that training in the use of positive behavioral supports is often lacking and can be a critical factor in including children with disabilities in school.

 

         

House Passes The Stop Child Abuse in Residential Programs for Teens Act of 2009

 

     Yesterday the House of Representatives overwhelmingly approved legislation to protect teenagers living in residential programs from physical, mental, and sexual abuse and to help ensure parents have the information they need to keep children safe. The Stop Child Abuse in Residential Programs for Teens Act of 2009 (H.R. 911) would establish minimum health and safety standards for preventing child abuse and neglect at teen residential programs. The legislation prohibits physical, mental, and sexual abuse and requires that residential programs provide children with adequate food, water, rest, and medical care. To ensure enforcement, the bill provides for civil penalties against programs that violate the new standards. Finally, H.B. 911 requires states, within three years, to take on the role of setting and enforcing standards for both private and public youth residential programs. 

     This legislation came about after investigations by the Government Accounting Office (GAO). The investigations were requested by U.S. Representative George Miller of California, Chairman of the House Education and Labor Committee, and uncovered thousands of cases and allegations of child abuse and neglect since the early 1990’s in teen residential programs. The investigated programs included therapeutic boarding schools, boot camps, wilderness programs, and behavior modification facilities. 

     Among other things, H.R. 911 would create a toll-free national hotline for individuals to report cases of abuse and neglect and a website with information about substantiated cases of abuse at residential programs. Finally, to prevent deceptive marketing practices, the bill requires that programs inform parents of their staff members’ qualifications, role, and responsibilities.