District’s Safety Concerns Do Not Justify Shortened School Day

In Castaic (Ca) Union Elementary Sch. Dist., 58 IDELR 234 (OCR IX, San Francisco (Ca) 2011), the Office for Civil Rights (OCR) determined that the school district denied students with mobility impairments a free appropriate public education when it shortened their school days and reduced their instructional time to ensure student safety. A group of elementary school students with mobility impairments and who used buses with wheelchair lifts filed a complaint with OCR because their school day was shortened. For most elementary school students in the district the school day lasted six hours and 31 minutes. But students who used buses with wheelchair lifts were required to leave their last class of the day 36 minutes earlier. After its investigation, OCR noted that this resulted in these students receiving 180 less instructional minutes per week than students who did not use buses with wheel chair lifts. The school district argued that having the accessible and regular buses run on the same schedule was too chaotic and potentially dangerous.

OCR agreed that safety may have been a relevant consideration, but it was not a valid reason for denying students with mobility impairments an equal educational opportunity. To be sure, if a shortened day is medically and educationally necessary, it may be appropriate for an individual student. But a shortened day for an entire category of students (such as these students who used accessible buses), is not an individualized decision. The school district agreed to develop a procedure to ensure that students with mobility impairments who received transportation services would receive equal instruction time.

Parents Concerns Regarding Siblings Immune Deficiency did Not Require School to Provide Homebound Placement

In Stamps ex. rel. H.S.,S.S, and J.S v Gwinnett County Sch Dist., 112 LRP 28567 (11th Cir. 06/04/12 unpublished), the parents of three siblings with genetic conditions, neurological disorders, and an unspecified immune deficiency were unsuccessful in requiring the school district to provide a homebound program (in-home IDEA services) as opposed to a school-based placement.

The parents of the three siblings had concerns that the children were at a significant risk of infection if they attended an in-school program. Thus, they requested that the children’s IDEA services be provided in their home. The school district disagreed and the issue was heard by an administrative law judge (ALJ). At the hearing the ALJ heard testimony from the family’s pediatrician as well as an expert in pediatric infectious diseases.

The family’s pediatrician testified that the children’s immune deficiencies did not require preventive treatment, they would improve with age and, in fact, the children had not been sick in several years. The expert in pediatric infectious diseases (who reviewed the children’s medical records and spoke with their pediatrician) testified that the children would  have the same probability of getting sick as other children and they did not require any restrictions in their socialization activities, whether going to school or other community functions. The ALJ ruled for the school district and the decision was later affirmed in an unpublished opinion by the 11th Circuit Court of Appeals.

As is generally the case, this decision is based on the specific facts. Here, there was expert testimony that these three children did not have a greater risk of infection than other children and their medical condition did not require social restrictions. Moreover, the school district has an affirmative obligation to place children with disabilities in the least restrictive environment-meaning to the maximum extent appropriate students with disabilities should attend classes along side students without disabilities. The parents in this case had the best of intentions, but were seeking a very restrictive placement for their children. Thus, the court determined that the evidence presented at the due process hearing did not establish that the children needed homebound services in order to receive a free appropriate public education. If the medical evidence had established that attending school and other community activities exposed the children to a greater risk of infection, the school district may have been required to provide services in the home.

Charter School Violated 504 by Requiring Student with Diabetes to Have a Family Member Attend Afterschool Softball Game

In Academy of Waterford (MI) 112 LRP 15747 (OCR 2011) the staff at Academy of Waterford, a public charter school in Michigan, violated 504 when it told the parent of 10 year-year-old with diabetes that he must be accompanied by family members if he wished to participate in an afterschool softball game. The charter school staff were concerned that there were not  staff available to supervise the student’s administration of insulin. Additionally, the charter school participated in “Camp Exposure,” an out-of-town educational field trip. The “Camp Exposure” program specifically barred students with diabetes from participating in the camp unless the students could take care of their own injections without supervision. Apparently, “Camp Exposure” was not concerned with exposing students with diabetes to its program. The camp counselor explained that “diabetes” is a “red flag” to follow-up with students because the program’s counselors were not trained. Technically, the camp was separate from the charter school, but, by coincidence, it was managed by the school’s charter management company.

The Office for Civil Rights (OCR) investigated the parent’s complaint and determined the charter school had denied the student the equal opportunity to participate in afterschool and extracurricular activities that it offered students without disabilities. Unlike this student’s family, the parents of students without disabilities were not required to attend afterschool activities with their children. Additionally, the public charter school violated 504 by  participating in Camp Exposure, a program which denies students with certain disabilities the opportunity to participate in the camp’s program. Camp Exposure had a policy of denying participation to students with diabetes who could not administer their own insulin injections. Academy of Waterford, the charter school program, had an arrangement with the charter management company’s camp. Since the camp categorically excluded students with disabilities requiring medical services, the Academy is violating 504 by having a contractual or other arrangement with a company that discriminates against students with disabilities.

 

Manifestation Determination (MD) Review is Not a Hearing and Parents Must Have Input into Makeup of the MD Team.

 A pet peeve of mine is the common misperception that the manifestation determination review process is a “hearing.” The IDEA requires that when a student with a disability has his/her educational placement changed for a disciplinary reason that a meeting be held to determine the relationship between the student’s misconduct and the student’s disabilities (see Discipline and Disability: Determining When a Child’s Misbehavior in School is Related to Their Disability). That process is referred to as a Manifestation Determination (MD) review. The team that conducts that review is composed of the relevant members of the student’s IEP team. Which members of the IEP team are relevant is determined by the student’s parents and the school district. Thus, the MD review team is determined by both the parents and the school district. The MD review team meeting is just that- a meeting. It is not a hearing.

Unfortunately, some educators, parents, and advocates began referring to the MD review process as a “hearing.” A “hearing” is an adversarial process before a hearing officer. Again, the IDEA  describes the MD review process as a meeting, not a hearing. This issue was addressed in Cherry Creek School District #5, 56 IDELR 149, (SEA CO 1/24/2011).

My office filed a complaint with the Colorado Department of Education (CDE) on behalf of a mother whose son was being expelled from school after a manifestation determination (MD) review meeting that determined her son’s misconduct was not related to his disability. The mother was concerned that prior to the meeting she was not informed that she could invite individuals to the MD review meeting and she was not informed who the district was inviting to the meeting. As a result, the mother did not have an opportunity to assist in determining which members of the IEP team were relevant and should be included on the MD review team. Moreover, after the meeting, the mother was informed that “the hearing officer at this meeting determined that the behavior of concern was not a manifestation of [Student's] handicapping condition.”

The CDE Complaints Officer determined that the school district failed to inform the parent either of her right to invite members of the IEP team, or of the members of the team the school district had already invited. This violation of the IDEA impeded the mother’s opportunity to participate in the MD meeting. Moreover, the school district’s reference to the meeting as a “hearing”, indicated a misunderstanding of the process. According to the Complaints Officer:

“The MD process is a collaborative meeting of district staff, the parent, and relevant members of the IEP team…The MD meeting is not an adversarial hearing process where the district and parent present witnesses to a hearing officer in support of their respective positions.”

The Complaints Officer required the school district to reconvene the meeting with an MD review team as determined by both the parent and the school district, to revise district policies regarding the MD process, and to train district staff on the the revised policies.

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