Justice Department Determines Private School Voucher Programs Must Comply with the ADA

     Last week the Department of Justice (DOJ) released a letter to the Wisconsin Department of Public Instruction (DPI) affirming that Wisconsin must ensure that students with disabilities who seek to enroll or are enrolled in private schools through Wisconsin’s taxpayer funded voucher program are not discriminated against on the basis of their disability. Wisconsin enacted laws creating the tax payer funded private school voucher program over 20 years ago and it was implemented in the city of Milwaukee by DPI. In June 2011 a collation of advocacy groups (the ACLU Foundation for Racial Justice, ACLU of Wisconsin, and Disability Rights Wisconsin) filed a complaint with the Department of Justice alleging that students in the Milwaukee Public Schools are (1) deterred by DPI and the private voucher schools from participating in the voucher program, (2) denied admission to voucher schools when they do apply, and (3) expelled or constructively forced to leave voucher schools as a result of policies and practices that fail to accommodate the needs of students with disabilities. These advocacy groups claimed the actions by DPI and the private voucher schools violate Title II of the Americans with Disabilities Act (ADA).

          The Department of Justice investigated the allegations of the complaint and interviewed parents and public school district officials. Based on the investigation, DOJ determined that the Wisconsin Department of Public Instruction (DPI) must do more to enforce the ADA requirements that govern the treatment of students with disabilities who participate in the private school voucher program. Because the voucher program is publicly funded and administered by the state, it must comply with Title II of the ADA. Title II is the section of the ADA that applies to state and local governmental entities. Thus, DPI must ensure students with disabilities are not discriminated against based on their disability. According to the letter:

“DPI’s obligation to eliminate discrimination against students with disabilities in its administration of the school choice program is not obviated by the fact that the schools participating in the program are private secular and religious schools. Indeed, courts recognize that the agency administering a public program has the authority and obligation under Title II to take appropriate steps in its enforcement of program requirements to prohibit discrimination against individuals with disabilities; regardless of whether services are delivered directly by a public entity or provided through a third-party.”

Specifically, DOJ required the Wisconsin DOI to comply with:

1. ADA Title II Obligations. DPI must eliminate discrimination against students with disabilities or students whose parents or guardians have disabilities. The private or religious status of the individual voucher schools does not absolve DPI of that responsibility.
2. Complaints. DPI must establish and publicize a complaint procedure for individuals to file disability-based complaints and provide DOJ with copies of those complaints.
3. Data and Reporting. DPI must provide detailed data regarding how students with disabilities are being served by voucher schools.
4. Public Outreach. DPI must conduct outreach to educate families of students with disabilities about school choice programs, and provide specific and accurate information about the rights of students with disabilities and the services available at voucher schools.
5. Monitoring and Oversight. DPI must ensure that voucher schools do not discourage students with disabilities from applying for admission, or improperly reject a student with a disability who does apply to a voucher school. Voucher schools cannot exit/expel a student with a disability unless the school has first determined, on a case-by-case basis, that there are no reasonable modifications to school policies, practices or procedures that would enhance the school’s ability to serve the student.
6. ADA Training for Voucher Schools. DPI must provide mandatory ADA training to voucher schools on a periodic basis and submit a copy of the training materials and attendance sheets to DOJ.
7. Guidance. By the end of 2013, DPI must develop program guidance to assist and educate voucher schools about ADA compliance. That guidance must be developed in consultation with DOJ.

School District Erroneously Requires Parent to Provide Medical ADHD Diagnosis in Order to Get 504 Plan

In South Monterey County (CA) Joint Union High School District 112 LRP 28705 (OCR 2012), the Office for Civil Rights (OCR) determined that a school district had violated Section 504 by requiring that a parent provide a medical diagnosis that her son had ADHD before  the District developed a 504 Plan. The student began attending  school in the District in his 9th grade year in the 2010-2011 school year. His mother met several times with school district staff trying to get the District to develop a 504 Plan for the student because he had been previously diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he attended a different school district. Each time the mother met with the District, she was told that she must produce a medical diagnosis of ADHD in order to obtain a 504 Plan. The school district never offered to evaluate the student itself. The student performed very poorly in his classes getting grades of “Ds”and “Fs”.

In January, 2011 the mother provided a diagnosis for her son from 2004 that identified him as having ADHD. Subsequently, the school district convened a meeting and developed a 504 plan that provided accommodations for the student. The mother, however, filed a complaint with OCR for the district’s delay in developing the plan and for not conducting its own evaluation of the student.

The Office for Civil Rights determined that district staff had acted under the erroneous belief that a medical diagnosis was required to qualify a student for a 504 Plan. Moreover, the school district’s mistake in requiring a medical diagnosis was exacerbated by requiring that the parent pay for the medical diagnosis. If the school district felt a diagnosis was needed, it was obligated to pay for the diagnosis. In order to avoid paying for the evaluation, the school district relied on an outdated diagnosis from 2004. This resulted in an inadequate 504 Plan. As a result, the student went for over a year and a half without being evaluated by the school district to either confirm, disprove, or modify his perceived diagnosis of ADHD and to identify the nature and extent of his possible disabilities. To remedy the 504 violation the school district agreed to conduct appropriate evaluations of the student, provide him with compensatory services, and to to train its staff on the requirements of section 504.

In Reviewing MDR Decisions, Hearing Officers May Consider Whether the Student Actually Violated the Code of Student Conduct

Students with disabilities, like all students, may be disciplined for violating the school’s code of conduct.  If that discipline involves a disciplinary change in the student’s placement, the school district must conduct a manifestation determination review (MDR) to determine whether the student’s alleged misconduct was related to the student’s disability. The outcome of the MDR can be appealed to  a hearing officer.  Historically, hearing officers have generally only reviewed the evidence regarding whether the student’s  misconduct was related to the students’ disability or whether the school district followed the appropriate procedures. Hearing officers have not generally reviewed whether the student with a disability actually violated the code of conduct. In Letter to Ramirez , 60 IDELR 230 (OSEP Dec. 5, 2012), Melody Musgrove, the Director of the Office of Special Education Programs, clarified that hearing officers may address whether the student did, in fact, violate the code of conduct.

Ms. Musgrove’s letter was in response to a letter from a former hearing officer asking for guidance on  whether it was within “a hearing officer’s jurisdiction to get involved in the determination of whether a certain action by a student with a disability amounted to a violation of the school district’s Student Code of Conduct.”  In response, Ms. Musgrove stated “Because the hearing officer’s authority includes a determination regarding 34 CFR 300.530 and that provision includes references to removal from the current placement of a child with a disability who violates a code of student conduct, there may be instances where a hearing officer, in his discretion, would address whether such a violation has occurred. The IDEA and its implementing regulations neither preclude or require that a hearing officer determine whether a certain action by a student with a disability amounts to a violation of the school district’s Student Code of Conduct.” Thus, hearing officers have discretion whether to make that determination, but it is within their jurisdiction. So, if parents question whether their child actually did violate the school district’s Student Code of Conduct, they may raise that as an issue with the hearing officer.

Change in Location Can Be A Change in Placement

     Some school districts and their counsel assert that, under the IDEA, a change in location of service delivery is not a change in placement if the IEP services remain the same. If the location change is not a change in placement, the service location can be changed without parent input or an IEP meeting. That may sometimes be the case, but there are many instances in which IEP services may generally remain the same but a change in location will affect the service delivery so that it is a change in placement. For example, students with disabilities must attend the school they would attend if they did not have a disability, unless the IEP requires otherwise. Thus, placing a student with a disability in a school they would not attend if they did not have a disability is an IEP team decision and changing a student’s placement to a school they would not attend if they did not have a disability is an IEP team decision. Whether the change in location is a change in placement turns on the facts of the specific situation.

     For example, in Valentin v School District of Philadelphia, 113 LRP 7167 (E.D. Pa 02/19/13), the court ruled that a district’s practice of unilaterally transferring students with autism between centralized grade-level programs located in different schools violated the IDEA.  The school district had a practice of  unilaterally changing the building assignment for students with autism as the students changed grade levels.  The new building assignment decision was made without an IEP meeting or parent input. Moreover, parents were not provided written notice of the location change and parents were not notified of the change in location until after the decision had been made. The school district argued that it was just changing the grade level and physical location where IEP services would be delivered, which is not a change in placement.

     The court, however, noted that children with autism typically have difficulty with transitions and changes in routine and a change in the physical location of services would likely be far more traumatic for students with autism than it would for students with other disabilities. The court concluded that under the particular facts of the case, transferring students with autism to a separate school building in the school district constitutes a change in their educational placement under the IDEA. Thus, the court ordered the school district to follow the IDEA’s placement procedures, including parent participation and appropriate notice, before transferring students with autism to new schools.

IDEA Regulations Amended to Allow School Districts Easier Time Accessing Public Benefits

The U.S. Department of Education announced today, effective March 18, changes in the IDEA Regulations that will facilitate school districts accessing public benefits, such as Medicaid, or insurance to pay for services in a student’s IEP  but also protecting parent rights. Currently, school districts may access a student’s or parent’s public benefits or insurance,  but are required to obtain parental consent each time the district seeks access those benefits. Effective  March 18, school districts will still need to obtain parental consent to access the  benefits, but districts are only required to obtain a one-time written consent before accessing public benefits or insurance for the first time. Additionally,  school districts are required to provide written notification to the child’s parents before accessing the public benefits or insurance for the first time and before obtaining the one-item consent.  While the consent is one-time, the notification must be provided annually.

Moreover, the parent’s consent must specify,  among other things, that the parent “understands and agrees” that the school district may access the child’s or parent’s public benefits or insurance. The Department of Education has provided a summary of these changes. It is hoped that these changes will reduce district’s administrative tasks and cost, while protecting parent rights.

18 Days of Early Dismissals Constitute a Pattern Requiring a Manifestation Determination Review

In South Bronx (NY) Classical Charter School, 59 IDELR 231 (OCR 2012) the Office for Civil Rights (OCR) determined that the school’s frequent early dismissals of a kindergartner with a speech/language impairment required a manifestation determination (MD) meeting  before excluding the student from school for more than 10 days. Per Section 504 (and the IDEA) school districts cannot discipline students with disabilities  by excluding them from school for more than 10 consecutive school days or, in some cases, nonconsecutive school days, without first conducting a manifestation determination (MD) review. In this case, the school district suspended the child for one day for making a gun sign with his fingers and stating he was going to kill his teacher. The school implemented a series of early dismissals to control the student’s inappropriate behaviors. Those behaviors included  failing to cooperate and follow directions, yelling, howling, and throwing items at school staff. The student was released from school at 1 p.m. from Oct 11, 2011 through Oct.  17, 2011 and from noon on Oct. 18, 2011 through Oct. 28, 2011. The district did not provide him with supplemental instruction on those early release days.

The parent filed a complaint with OCR which initiated an investigation. OCR determined that, although the student’s exclusions were not for consecutive or full days, they amounted to a pattern that significantly changed his placement. As a result, before excluding the student for more than 10 school days, the district should have convened a group of knowledgeable persons to determine whether the student’s conduct was a manifestation of his disability. To remedy the violation, the school district agreed to provide training to its staff regarding the requirements of 504 relating to disciplining students with disabilities and appropriately implement those requirements. The school district has also agreed to provide additional school services to compensate the student for the time he missed due to the early dismissals.

Office for Civil Rights Issues Guidance on Extracurricular Athletics for Students with Disabilities

Last Friday, January 25, 2013, the Office for Civil Rights (OCR) issued a formal guidance to clarify the 504 responsibility of schools to ensure  that students with disabilities have equal access to participate in extracurricular athletics. In 2010, the Government Accountability Office (GAO) had issued a report that noted the health and social benefits all students derive from participating in extracurricular athletic activities in elementary and secondary schools. Unfortunately, the GAO report found that students with disabilities are not being afforded an equal opportunity to participate in extracurricular athletics in schools. To help remedy that concern, the OCR issued this guidance.

The guidance provides an overview of the 504 obligations of public elementary and secondary schools and provides examples and suggestions for helping students with disabilities participate in athletics. The document warns schools against making decisions based on presumptions and stereotypes and discusses providing separate or different athletic opportunities for some students with disabilities.  For example:

• A student has a learning disability and participated in middle school’s lacrosse club. Upon entering 9th grade, her coach is aware of her learning disability and has a preconceived notion that students with learning disabilities would be unable to play under the  time constraints and pressures of an actual game. As a result, she does not play in actual games and the coach feels participating in practice is sufficient.  This violates 504. While the student does not have a right to participate in games, the coaches decision regarding her playing time must be based on the same criteria as other players and not on his presumptions about her disability.   

• A high school student has a hearing impairment and wants to run for the school track team. During tryouts the races are started by a visual cue and the student makes the team. Races during practice are also started with a visual cue. Before the first scheduled meet, the student asks the district to use a visual cue at the meet simultaneously with the starter pistol sounds. But, the district denies the students request and the coach informs him he can only run in practices, not in meets. This violates 504, the use of a visual cue does not require a fundamental alteration in how the meets are conducted.

The guidance offers other examples and discusses offering separate or different athletic opportunities for students with disabilities. For example, school districts are increasingly creating disability-specific teams for sports such as wheelchair tennis or wheelchair basketball. When the number of students at a particular school is insufficient to field a team, school districts can also (1) develop regional teams (2) mix male and female students on team together; and (3) offer allied or unified  sports teams on which students without disabilities participate with students with disabilities.

In conclusion, OCR stresses its commitment to working with schools, students, families, community and advocacy organizations  athletic associations, and others to ensure students with disabilities are provided an equal opportunity to participate in extracurricular athletics  Finally, OCR notes that individuals who believe they have been subjected to discrimination may file a complaint with OCR or in court.

FERPA Amended to Let Schools Release Student Records to Foster Care Workers

On New Year’s Day the House of Representatives passed the Uninterrupted Scholars Act , S. 3472 that amends the Family Educational Rights and Privacy Act (FERPA) to allow schools to release a student’s records without parental consent to “an agency caseworker or other representative of a state or local child welfare agency, or tribal organization … when such agency or organization is legally responsible… for the care and protection of the student.” Additionally,  if the parent is a party to a court proceeding involving child abuse and neglect or dependency matters, and the court orders the records released, the school can release the records without notifying the parent.

The intent of the legislation is to allow children in foster care to move from school to school as seamlessly as possible. Unfortunately, children in foster care are often subjected to frequent moves and it was thought that FERPA had unintentionally prevented schools from sharing educational records with social workers. This had resulted in inappropriate placements, enrollment delays, delayed graduation, repeated classes, and dropouts. While the bill allows schools to release records, it does not require the schools do so. Like most of the requirements in FERPA, the release of records is permissive and not mandatory. The bill is expected to be signed into law by President Obama.

Bus Suspension Requires MDR Even if Parent Drives Student to School

Melody Musgrove, the Director of the Office of Special Education Programs (OSEP) provided guidance regarding a school district’s obligation to conduct a manifestation determination when a child is suspended from school bus services [Letter to Sarnznyski 59 IDELR 141 (OSEP 2012)]. The student’s IEP included transportation as a related service. The student was suspended from the bus but his in-school services were not interrupted or changed. Ms. Musgrove was asked whether a 10 day suspension from bus services was sufficient to trigger a manifestation determination if the other IEP services were uninterrupted because the parent drove the student to school during the bus suspension?

The answer is “Yes.” If the student is suspended from transportation services that are included in the IEP for more than 10 consecutive school days, that is a change in placement requiring a manifestation determination. This is true even though the student’s parent provided transportation. Moreover, if the student had previously been suspended, in that school year, from the bus, those days of suspension also count towards the 10 days that trigger a disciplinary change in placement. Thus, a series of disciplinary removals from bus services totaling more than 10 days in the school year trigger the IDEA discipline procedures, including the manifestation determination review.

On 39th Anniversary of 504 OCR Issues “Disability Rights Enforcement Highlights”

     On the 39th Anniversary of the passage of Section 504 of the Rehabilitation Act the Office for Civil Rights (OCR) within the U.S. Department of Education has published Disability Rights Enforcement Highlights. This 21 page publication provides a good overview of OCR’s role in protecting the rights of students with disabilities under Section 504 and Title II of the ADA. It discusses what is a disability, the IDEA and 504, and focuses on the following seven different issue areas: Free appropriate public education, discipline, academic adjustments, accessibiltiy of technology, physical accessibility of programs services & facilities, harassment/bullying, and right to equal treatment.

     The booklet provides specific case examples in each of these issue areas and provides interesting statistical data regarding OCR’s work. For example, in the fiscal years 2009 through 2011, OCR received over 11,700 disability-related complaints. This is more than ever before in a three-year period. Moreover, while OCR also investigates complaints based on discrimination due to race, color, national origin, sex, and age, more than 55% of the complaints OCR received in this three-year period involved disability issues. Looking at some of the specific issue areas: 4,600 cases involved a denial of a free appropriate public education, 750 involved Discipline issues, and 1,000 complaints were based on Disability Harassment. Moreover, the Office for Civil Rights noted that students served under the IDEA were twice as likely to be suspended out of school as their classmates without disabilities.

      Again, the OCR provides specific case examples in each of these issue areas. The booklet provides the following sad case example regarding disability harassment. A high school student with Fragile X Syndrome, Asperger’s Syndrome, Tourette’s Syndrome and ADHD was verbally ridiculed be her fellow students about her disability-related body odor, sprayed with an air freshener by staff in front of her classmates, detained by staff in school who made her take showers before allowing her to attend class, and pulled out of class and sent home before the end of the school day because of her body odor. After OCR’s involvement, the school agreed to provide training to staff about 504 and the student’s disabilities, enroll the student in its “Senior Life Skill”s course, provide her with weekly social work services, and help her find a community job.

     As noted earlier, this publication provides similar specific case examples in each of the issue areas.  I commend this booklet to you. I think it will help clarify the vital role OCR plays in protecting the rights of students with disabilities.