IDEA Fairness Restoration Act introduced in Congress

     On March 17, 2011 the IDEA Fairness Restoration Act was introduced in the Senate (S. 613) by Senators Harkin, Mikulski, and Sanders and in the House (H.R. 1208) by Congressman Chris Van Hollen and Congressman Pete Sessions. If passed, these bills would overturn the 2006 Supreme Court decision in Arlington Central School District v Murphy (2006) in which the Court decided that parents who prevail in their IDEA cases cannot get reimbursed for their expert witness fees under the provision of the IDEA allowing reimbursement of attorneys’ fees. The bill was introduced in previous sessions of the House of Representatives, but this is the first time  it has been introduced in the Senate.

     This brief legislation allows parents who prevail/win their IDEA hearing to be reimbursed for their attorneys’ fees and fees for expert witnesses. Additionally, parents can be reimbursed for the reasonable costs of any test or evaluation necessary for the preparation of the parent’s case in the hearing. Without expert witnesses and evaluations it is very difficult for parents to prevail against school districts. Of course, the school district has its own staff and resources to provide expert testimony in support of the district’s position. Most families cannot afford to pay for expert witnesses and evaluations. By offering parents reimbursement for those costs, this proposed legislation would help level the IDEA due process playing field.

Remember that 504 Requires Manifestation Determinations for Students Even Though They May NOT be Eligible Under the IDEA

     In Springfield School District #186, 55 IDELR 206 (OCR June 29, 2010), the Office for Civil Rights determined that a school district violated Section 504 when it expelled a 7th Grader with ADHD without conducting a manifestation determination. In November of 2008 the student was diagnosed with attention deficit hyperactivity disorder (ADHD) and a sleep disorder. The school district developed a Section 504 Plan to address his needs related to his disabilities. The following year, in December 2009, there was an altercation between the student and a counselor regarding seating on the school bus. The counselor attempted to direct the student to an assigned seat. However, when the student refused to sit in the assigned seat, there was a heated verbal exchange, and the student allegedly punched the counselor. The principal suspended the student for 10 days and referred him to the district’s student review committee for possible expulsion. Based on that committee’s recommendation, the  school board expelled the student for the rest of the school year and assigned him to an alternative school. The student’s parent filed a complaint with OCR because the school district had not determined whether the student’s conduct was a manifestation of his disability.

     The Office for Civil Rights noted that Section 504 provides that a school district cannot discipline a student with a disability for behavior that is a manifestation of his disability if the disciplinary action is a significant change in placement. In this case, expelling the student and assigning him to an alternative school is a significant change in placement. The school district should have conducted a manifestation determination (MD) before disciplining the student and the manifestation determination should be conducted by a team of knowledgable individuals. Here, however, the principal unilaterally determined that the MD was not required because she determined that his conduct was unrelated to his disability. The Office for Civil Rights determined that the principal mistakenly believed a manifestation determination was not required because the student did not have an IEP.

     To settle the complaint, the school district agreed to provide training to all district administrators and relevant staff regarding discipline and students with 504 disabilities. The district also agreed to convene a meeting of individuals knowledgeable about the student, including the student’s parent, and conduct a manifestation determination. If the group determines that the student’s conduct was a manifestation of his disability, then his expulsion must be expunged. In that case, the group will also determine what, if any, compensatory services are appropriate to make up for services he may not have received while expelled.

     This Office for Civil Rights decision is a reminder that students who have disabilities under section 504, even though they are not eligible for IDEA services, have protections in the disciplinary process. If the discipline results in a significant change in placement, those students are entitled to a manifestation determination review conducted by a team of persons knowledgeable about the student. In Broward County (Fla) School District, 36 IDELR 159 (OCR Nov. 19, 2001) the Office for Civil Rights explained what it considers to be a significant change of placement:

     “It is OCR’s policy that when the exclusion of a child with a disability is permanent (expulsion), or for an indefinite period, or for more than 10 consecutive school days, the exclusion constitutes a significant change in placement. A series of suspensions that are 10 days each or fewer in duration may create a pattern of exclusion that constitutes a significant change in placement. The determination of whether the series of suspensions creates a pattern of exclusions that constitutes a significant change in placement must be made on a case-by-case basis. Among the factors considered in determining whether a series of suspensions has resulted in a significant change in placement are the length of each suspension, the proximity of the suspensions to one another, and the total amount of time the student is excluded from school.”

     Thus, a significant change in placement can occur for a permanent removal from school, a removal for more than 10 consecutive  days, or a series of removals that constitute a pattern.

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