Least Restrictive Environment Applies to Extended School Year

Students with disabilities who need extended school year (ESY) are entitled to receive those services in the least restrictive environment. This is true even if the school district does not offer a summer program to students without disabilities.  In T.M. by A.M. v. Cornwall Central School District, 63 IDELR 31 (2d Cir. 2014), the 2d Circuit U.S. Court of Appeals  held that least restrictive environment applies equally to extended school year and school districts must offer a continuum of educational placements for extended school year services. This case involved  a 6 year old boy with autism who made progress in  his general education kindergarten class. In fact, he was mainstreamed for all of his kindergarten classes and was provided significant supports to successfully integrate him in the general education program.   He was determined eligible for extended school year services in the summer, but the summer programs offered by the district only served students with disabilities. The parents rejected the segregated programs offered by the school district and enrolled their son in a mainstreamed private school program. The parents also requested a due process hearing regarding the failure of the district to offer a mainstreamed summer program.

The impartial hearing officer determined that, since the school district was not required to offer a summer program for students without disabilities, it was not required to offer a mainstreamed extended school year program for this child. The parents appealed to federal district court and the district court ruled for the school district that it did not have to provide a mainstreamed summer program.

The Court of Appeals overruled the district court noting that extended school year services are an essential program component for students who require year round services to prevent substantial regression. The Court stated that: “Under the IDEA least restrictive environment refers to the least restrictive environment consistent with the student’s needs, not the least restrictive environment that the school district chooses to make available.” Thus, districts must ensure that they have a range of educational settings available for extended school year placements. If a district does not offer a mainstream ESY program, it can still make a continuum available by considering a private summer program or a mainstream ESY program offered by another public entity. In the case at hand, the school district was ordered to reimburse the parents for the costs of the mainstreamed private summer program where they had placed their son.

School Psychologist’s Assumption Student’s Poor Performance Was Marijuana-induced Laziness Causes Problems for Texas District

In Fort Bend Independent School District v. Z.A. Douglas A. 62 IDELR 231 (S.D. Tex. Jan 29, 2014), a school psychologist terminated a teenage student’s counseling sessions after just one session because the counselor assumed the student’s educational issues were due to marijuana use rather than the after-effects of the student spending four years in a Russian orphanage and severe depression and anxiety. The student had been abandoned at the age of 4 months and spent the next four years in an orphanage until his parents adopted him. He was  diagnosed with ADHD and determined eligible for IDEA services as a student with an emotional disturbance.  It was known that he smoked marijuana and he displayed an extreme lack of focus and refused to do school work. The school district developed an IEP that included weekly counseling sessions and classroom modifications. Unfortunately, the school counselor ended the counselling sessions and referred the student to a drug counselor based on the psychologist’s determination that the student’s school difficulties were caused by marijuana induced laziness.  Concerned that their son’s behavior was escalating the parents placed him in a residential facility where he was diagnosed with RAD (reactive attachment disorder). The parents then filed for due process to obtain tuition reimbursement. The hearing officer determined the district had denied the student a free appropriate public education and ordered it to partially pay the facility tuition at $7000 a month. The school district appealed arguing it was unaware that the student had RAD.

The district court determined the district may have been unaware of the RAD,  but it was aware of the student’s anxiety and depression and their impact on his ability to access learning. The district did little to address those issues  and, although the IEP required counseling, the counselor had unilaterally terminated the weekly sessions and referred the student to a drug counselor. The court held that by failing to address the student’s learning-linked depression and anxiety, the school district had failed to provide a program reasonably calculated to enabler the student to receive meaningful educational benefit.

 

Virtual Public Charter School Required to Comply with Section 504

The U.S. Department of Education recently announced an agreement with the Virtual Community School of Ohio, an internet based based, public charter school, ensuring compliance with Section 504 and Title II of the ADA. In the press release announcing the agreement, the Department of Education states:

“This first-of-its-kind resolution promises  equal access to educational opportunities for students with disabilities at the school.” And, the press release goes on to say:

“Students with disabilities who attend online public charter schools are entitled to all the protections of the federal civil rights laws that their peers receive at traditional public schools, including the right to receive a free appropriate education.  Online schools also must take steps to ensure that the websites and online classrooms they use to promote their services and to educate students are accessible to individuals with disabilities.”

The agreement requires the virtual school to:

  • Develop Section 504  policies and procedures so that students with disabilities are appropriately identified, evaluated, , and provided services to ensure they receive a FAPE;
  • Notify parents, guardians, and students of the revised Section 504 policies and procedures;
  • Evaluate or reevaluate students with disabilities enrolled in the last two years to determine whether they need compensatory special education and/or related aids or services and, based on this evaluation, promptly provide compensatory services;
  • Publish contact information for the school’s Section 504/Title II coordinator and ensure that the coordinator is appropriately trained;
  • Develop and publish grievance procedures that provide for the prompt and equitable resolution of disability discrimination complaints;
  • Provide training to staff involved in the evaluation and placement of students with disabilities;
  • Develop policies and procedures to ensure that the school’s online technologies are accessible, including the adoption of technical standards to ensure accessibility;
  • Revise its website and on-line learning environment so that they are accessible to individuals with disabilities, including students with visual, hearing, or print disabilities and those who otherwise require use of assistive technology to access the school’s program;
  • Monitor the accessibility of the school online technologies; and
  • Provide annual training for staff responsible for online technologies about the school’s

accessibility policies and procedures and their roles and responsibilities in ensuring online content is accessible.

The Office for Civil Rights will monitor the schools implementation of the agreement.

Charter school violated IDEA by dis-enrolling student during pendency of a hearing

In an unpublished opinion the 3rd Circuit Court of Appeals ruled that a charter school violated the stay put provisions of the IDEA by dis-enrolling a student with Down syndrome after she missed 10 consecutive days of school. (R.B. v Mastery Charter School, 113 LRP 30422 (3rd Cir 2013, unpublished). Pennsylvania state law required that students be removed from enrollment after missing 10 consecutive school days. Here, the student had missed eighteen months, but the parent had requested a due process hearing. The Charter School argued that after missing the consecutive days of school, based on state law, the student became the responsibility of the school district of residence, not the charter school.

The 3rd Circuit upheld a district court decision, R.B. v Mastery Charter School, 762 F. Supp. 2d 745 (E.D. Penn 2010), that found dis-enrolling the student violated the IDEA. The courts reasoned that stay-put  during the pendency of a hearing, was the  placement identified in the student’s last implemented IEP. Here, that was the Charter School placement. The IDEA preempted the state law requiring dis-enrollment after 10 consecutive days of absence. The Court said that to do otherwise would allow schools to  unilaterally change a placement  and then argue the new change was stay put and the status quo.

MDR Teams Must Look beyond the Student’s Special Education Eligibility “Label” when Making a Manifestation Determination

One benefit of having a blog is having a forum to express my pet peeves. A major pet peeve of mine is those school districts and their attorneys who refuse to consider information related to conditions and disabilities a student may have other than the student’s special education disability label when conducting a manifestation determination review (MDR).

The manifestation determination review process was first put in place by the Office of Special Education Programs (OSEP) in 1995, when it issued its Memorandum 95-16, 22 IDELR 531 (April 26, 1995). The Office of Special Education Programs acknowledged that behavior, even inappropriate behavior that is caused by a disability, should be responded to differently than when the behavior is not related to the disability. Of course the IDEA was amended in 1997 to codify the MDR process.

If the purpose of conducting a manifestation determination is to not discriminate against students with disabilities by punishing them through expulsions and other long-term disciplinary sanctions for behavior they can’t help due to having a disability, then we must consider information related to conditions other than the special education “label”. If we only consider the student’s special education label in the MDR process and ignore other conditions that contribute to the student’s behavior, then we risk punishing the student for behavior related to a disability. That violates not only the IDEA, but 504 and the Americans with Disabilities Act as well.

Here is a decision that makes this point. In Seattle School District, 60 IDELR 266 (SEA WA 2012), the Administrative Law Judge (ALJ) for the Washington State Education Agency required a school district to re-do an MDR because it had not considered information regarding other disabilities than the student’s special education disability “label”.  The student had been identified for special education eligibility as having ADHD. When his MDR took place he had also been diagnosed with disruptive behavior disorder and with anxiety disorder. The MDR team did not consider information about these two other conditions.

The ALJ ruled that the MDR team must consider all relevant information in the student’s file, including the IEP, teacher observation, and any relevant information provided by the parents. The ALJ cited several SEA decisions and a OCR decision in stating that: “School districts may violate the IDEA when their manifestation determinations are based only upon the disability on which the student’s special education eligibility is based.” See Renton Sch. Dist., 111 LRP 3970 (SEA WA 2011); Snohomish Sch. Dist., 103 LRP 38270 (SEA WA 2003); Murrieta Valley Unified Sch. Dist., 53 IDELR 108 (SEA CA 2009); and Quincy (Wa) Sch. Dist., 52 IDELR 170 (OCR 2009).

So, when conducting a manifestation determination review the team should consider all relevant information including information regarding disabilities the student may have other than the disability on which the student’s special education eligibility is based.

Compliance with the IDEA does not always equal compliance with the ADA: The ADA may require additional services for students with hearing impairments

     In K.M. by Bright v. Tustin Unified Sch. Dist., 113 LRP 3187 (9th Cir. 08/06/13), the 9th Circuit of Appeals determined that the fact the school district developed an appropriate IEP for a student with a hearing impairment does not mean the student  may not have claims under the Americans with Disabilities Act (ADA). 

     This case involved two California high school students with hearing impairments who had requested word-for-word transcription so that they could fully understand the teacher and fellow students without undue strain and consequent stress. The students were eligible for services under the IDEA and each had requested Communication Access Realtime Translation (CART) either under the IDEA or Title II of the ADA (Title II is that part of the ADA that applies to state and local government entities, including school districts). CART is a word-for-word transcription service, like court reporting, in which a trained stenographer provides real-time captioning that appears on a computer monitor. In both cases, the school districts denied the CART services but offered other accommodations. The parents appealed and the cases proceeded to federal district court. 

     The district courts ruled that real-time transcription services were not necessary for the students to receive a free appropriate public education and need not be included on the IEP. Thus, the districts had complied with the IDEA. The courts then held that a valid IEP that complies with the IDEA, rules out an ADA claim. 

     The two district courts determined that (1) a valid IEP under the IDEA satisfies the requirement to provide a free appropriate public education under 504 and (2) Section 504 and Title II of the ADA are similar statutes, thus a valid IEP also complies with the ADA.  This reasoning was based on the fact that section 504 requires that students with disabilities receive a free appropriate public education and the 504 regulations indicate that implementing an appropriate IEP is one means of complying with 504’s free appropriate public education requirement. Since 504 and Title II of the ADA are similar statutes, complying with 504 means complying with the ADA. Thus, once the IEP is determined appropriate, the 504/ADA claims are foreclosed. 

     The 9th Circuit disagreed. It said that the three statutes, the IDEA, 504, and ADA, each have different purposes and requirements. The IDEA is focused on an IEP process that should result in providing students with disabilities a free appropriate public education. The ADA and 504 have substantive requirements to ensure students with disabilities are not subjected to discrimination. 

     To that end, the Department of Justice (DOJ) has promulgated regulations to prevent such discrimination under the ADA. Those regulations include a requirement that public entities, such as school districts, take steps to ensure that communications with individuals with disabilities are as effective as communications with others. Moreover, those public entities, including school districts, must furnish auxiliary aids and services to afford individuals with disabilities equal access to the program being offered. Real-time-computer-transcription-services are specifically included in the definition of auxiliary aids and services

     The purpose of these auxiliary services under the ADA is to provide equal access for the student to the educational program offered by the school district. Providing equal access is not the same as providing a free appropriate public education under the IDEA. Ensuring equal access may require providing auxiliary aids and services that may be in addition to services required under the IDEA. Thus, a school district’s compliance with the IDEA may not always mean compliance with the ADA.  The court also noted that administrative agencies are generally deferred to in interpreting their own regulations. Here, the DOJ had filed an amicus brief supporting that the ADA effective communication requirement for students who are deaf or hard-of-hearing was different than the requirements of the IDEA. 

     Finally, this decision does not mean these two students will receive the real-time transcription services. The 9th Circuit sent the cases back to the district courts so that those courts and the parties could relook at the issues based on this court’s decision. A key discussion in the districts courts will be whether providing the transcription services fundamentally alters the nature of the school program or is an undue financial and administrative burden on the school districts. If so, the ADA would not require the school districts to provide those auxiliary aids and services.

 

Charter School should have acted proactively to evaluate 504 eligibility for student who began to use a wheelchair

     The Office for Civil Rights (OCR) determined that a Charter School in Colorado should have noticed when a student with cerebral palsy suddenly began using a wheelchair and should have evaluated her eligibility for a 504 plan. Aurora (CO) Public Schools 61 IDELR 83 (OCR Jan. 14, 2013), involved a student with cerebral palsy who attended a district Charter School. In January 2010, she began having difficulty climbing stairs and standing for long periods and started to use a wheelchair. Previously, she had not consistently used a wheelchair. Her mother and members of the Charter School staff met to discuss her use of the wheelchair and how to help her with it. The parent did not request a 504 evaluation and the school did not conduct one. Later, the mother filed a complaint with OCR alleging the Charter School should have initiated an evaluation. The Charter School responded by saying that: (1) the parent had not requested a 504 evaluation, and (2) the student was performing well academically, and thus, was not eligible for 504. 

     The OCR investigation found that, in fact, the Charter School had not evaluated the student for a suspected disability and the School did not have a designated 504/ Americans with Disabilities Act (ADA) Coordinator or a grievance process that complied with the 504/ADA requirements. Moreover, OCR noted that: (1) the School had an affirmative duty to identify and locate every qualified student with a disability and the School may not require a parent to request an evaluation, and (2) the fact the student is performing well academically did not exclude her from 504 eligibility. Under 504, a student is eligible if she has a physical or mental impairment that substantially limits one or more major life activities, including functions such as caring for one’s self, performing manual tasks, walking seeing, hearing, learning, and breathing. The OCR specifically noted that “Although the School’s primary purpose is education, its obligation to follow Section 504 and Title II regarding its provision of services to students and others using School programs is not limited to disabilities that affect academic performance.”   

     The Charter School’s Colorado school district signed a resolution agreement to comply with section 504 and the ADA. In the resolution agreement the school district agreed, among other things,  to convene a team meeting to determine the student’s 504 eligibility, publish on the Charter School’s website and in the parent handbook new  504 policy and procedures for identifying and providing services to students (including grievance  procedures and designating a 504/ADA coordinator, submit the new policies to OCR for approval, and provide training to all Charter School staff on the requirements of 504 and Title II of the ADA. 

     There are a couple of interesting points about this decision.  First, it’s unfortunate, but not unusual, for schools to fail to understand that eligibility for 504 services does not turn solely on a student having an impairment that substantially limits the major life activity of learning. A student may be performing very well academically and still need supports such as access to insulin injections, rest periods, a modified class schedule, a sign language interpreter, a note taker or access to a tape recorder, or Brailed or large print materials. Second, note that while it was the Charter School that violated 504, the school district responsible for the Charter School signed the resolution agreement with OCR and is responsible for ensuring compliance with the agreement. The school district approved the charter for the Charter School and is responsible for ensuring the Charter School’s compliance with federal law the same as any other district school. 

District Cannot Use Behavior Contract to Justify Disciplinary Change in Placement without Manifestation Determination

 

In Waynesboro (PA) Area School District, 112 LRP 26149 (OCR 02/17/12), the Office for Civil Rights (OCR) determined that the fact a high school student with a learning disability had signed a behavioral contract did not allow the school district to change his placement without conducting a manifestation determination review (MDR). The student was African American and had been subjected to a number of incidents of racial harassment, some of which had resulted n physical altercations. The high school had made some effort to intervene with the harassing students and a counselor had worked with the student on how to handle these situations. In addition the student, his parent, the special education teacher, and acting assistant principal signed a Student Behavioral Contract with the student.  The contract included a provision that the student would resolve conflict in a non-violent manner.

According to the district, the contract was drawn up because the student had been involved in several altercations, some of which, but not all, were the result of racial harassment. Unfortunately, the student later had a physical altercation with another African American student and, based on breaching the contract, his placement was changed to an alternative high school. Before the change in placement he was suspended for several days, bringing his total suspensions for the school year to twelve. Based on its belief that violating the Student Behavioral Contract justified the change in placement, the school did not conduct an MDR prior to changing his placement to the alternative high school.

The student’s parent filed a complaint with OCR alleging racial harassment and a violation of Section 504 and the Americans with Disabilities Act because the district failed to conduct a manifestation determination before changing the placement, failed to conduct an evaluation prior to the change in placement, and failed to provide the parent with her procedural safeguards. The Office for Civil Rights found in the parent’s favor and required the district to provide the MDR and evaluate the students need for compensatory services to compensate for educational services he may have lost as a result of the illegal change in placement.

Parents Right to Participate in IEP Meeting Trumps Annual Review Date Deadline

A child’s individualized educational program (IEP) must be reviewed annually. It is good that the IDEA requires at least an annual review of the IEP, but I hear that parents are frequently told by school district staff the IEP must, without exception, be completed within a year of the previous review. Parents are sometimes told that the IEP will expire if not reviewed within exactly one year of the last review date. Individualized educational programs are not like canned goods or medicine with an expiration date. They do not automatically expire. School districts can extend the time for the review if it is necessary to ensure the parent’s participation in the IEP meeting.

In Doug C. v. State of Hawaii Department of Education (9th Cir. June 13, 2013), the 9th Circuit Court of Appeals ruled that the parent’s right to participate in the IEP meeting was more important than the Hawaii Department of Education’s (Hawaii ED) need to meet the IEP annual review deadline. In this case, the parent had e mailed the special education coordinator the morning of the IEP meeting that he could not attend the meeting because he was sick and offered to re-schedule the meeting for either Wednesday or Thursday of the following week. Unfortunately, the special education coordinator believed those dates were three and four days past the annual review date. He tried to convince the parent to participate in the IEP meeting that morning by phone, but the parent said he was too sick and wanted to participate in person. Not wanting to disrupt the schedules of the other IEP participants, the coordinator decided to go forward with the meeting without the parent. The IEP changed the child’s placement from a private special education facility to a public high school workplace readiness program. The parent rejected that IEP because it was created without his participation and requested a due process hearing.  The hearing officer and the district court ruled in favor of the district and the parent appealed to the 9th Circuit Court of Appeals.

The Court of Appeals ruled for the parent. The court rejected the argument that the IEP meeting had to be held by the annual review deadline. Because the parent was willing to meet the following week, the court said, the Hawaii ED should have accommodated the parent, rather than deciding it could not disrupt other team member’s schedules. The court acknowledged that there were competing requirements under the IDEA to hold the IEP meeting by the annual review date and to ensure parent participation. But, the Hawaii ED should have considered which of the two courses of action was less likely to result in a denial of a free appropriate public education for the student.  Moreover, the court pointed out that the Hawaii ED could have continued the student’s services after the review date had passed. Given the importance of parent participation in the IEP process, the Hawaii ED’s decision to proceed without the parent was clearly not reasonable under the circumstances. The 9th Circuit sent the case back to the district court to consider the parents right to tuition reimbursement for the placement in the private program.

 

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.
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