DOJ, OCR, and OSERS Issue Joint Guidance Letter and FAQ to Public School Educators Clarifying that the IDEA and ADA have Different Requirements: Complying with One may not Mean Compliance with the Other

Today, November 12, 2014, the Department of Justice (DOJ), and Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) with the Department of Education have issued a joint letter and FAQ to public school educators ( http://www2.ed.gov/about/offices/list/ocr/docs/dcl-faqs-effective-communication-201411.pd) explaining that the:

“Three Federal laws – the Individuals with Disabilities Education Act (IDEA), Title II of the Americans with Disabilities Act of 1990 (Title II), and Section 504 of the Rehabilitation Act of 1973 (Section 504) – address the obligations of all public schools to meet the communication needs of students with disabilities, but do so in different ways. In particular, the IDEA requires that schools make available a free appropriate public education (FAPE), consisting of special education and related services, to all eligible children with disabilities (including those with disabilities that result in communication needs). Title II requires schools to ensure that students with disabilities receive communication that is as effective as communication with others through the provision of appropriate auxiliary aids and services.”

The letter and FAQ goes on to say that public schools must consider the IDEA analysis and the Title II of the ADA effective communication analysis in determining how to meet the communication needs of an IDEA eligible student with a hearing, vision, or speech disability. Many times an IEP might meet the requirements of both the IDEA and ADA, but there are times when the effective communication requirements of the ADA may be different than the requirements of the IDEA. In those cases, the letter states:

“…in order to comply with Title II, a school may have to provide the student with auxiliary aids or services that are not required under the IDEA. In other instances, the communication services provided under the IDEA will meet the requirements of both laws for an individual student.”

This letter is based on a 9th Circuit Court of Appeals decision, K.M. v. Tustin Unified School District, 725 F.3d 1088 (9th Cir. 2013), cert. denied, 134 S. Ct. 1493 (2014),(http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/07/11‐ 56259%20web%20revised.pdf).

Interestingly, the United States government filed an amicus (friend of the court) brief in this case when it was before the Ninth Circuit; that brief can be found at http://www.justice.gov/crt/about/app/briefs/kmtustinbr.pdf.

The bottom line is schools cannot assume that by providing a free appropriate public education through an IEP that they have also met the communication needs under the ADA of students with vision, hearing, or speech disabilities. The school may need to consider providing additional auxiliary aids and services in order to comply with Title II of the ADA.

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.

Office for Civil Rights Reminds Charter Schools that Federal Civil Rights Laws Apply Equally to Charter Schools

On May 14, 2014 the Office for Civil Rights (OCR) issued a “Dear Colleague” letter clarifying that federal civil rights laws, enforced by OCR, apply to charter schools. In the letter Assistant Secretary for Civil Rights Catherine E. Lhamon states:

 “I am writing to remind you that the Federal civil rights laws, regulations, and guidance that apply to charter schools are the same as those that apply to other public schools,” the letter says. “For this reason, it is essential that charter school officials and staff be knowledgeable about federal civil rights laws. These laws extend to all operations of a charter school, including recruiting, admissions, academics, educational services and testing, school climate (including prevention of harassment), disciplinary measures (including suspensions and expulsions), athletics and other nonacademic and extracurricular services and activities, and accessible buildings and technology.”

The Assistant Secretary lists some of those laws: 

Title VI of the Civil Rights Act of 1964 (Title VI) (prohibiting discrimination based on race, color, or national origin); 

Title IX of the Education Amendments of 1972 (Title IX) (prohibiting discrimination based on sex); and

Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II) (prohibiting discrimination based on disability).

Moreover, the guidance notes that these Federal civil rights laws and their specific legal obligations apply to all public charter schools in the United States, regardless of whether they receive Federal funds under the Department of Education’s Charter Schools Program.

Regarding admissions, the letter notes that charter schools may have choice based admissions but points out that: 

“Although public charter schools’ civil rights obligations are no different from those of other public schools in this regard, the fact that students choose to attend a charter school and are not simply assigned to attend a charter school underscores the need to be mindful of the rights of children and parents in the community when publicizing the school to attract students and when evaluating their applications for admission.”

Specifically, that may mean printing materials so that parents of language-minority students can understand them, or providing interpreters or translating services. Charter schools must also avoid “admissions criteria that have the effect of excluding students on the basis of race, color, or national origin from the school without proper justification, and they cannot bar students from admission on the basis of disabilities. In addition, charter schools must be in compliance with district desegregation plans. 

Regarding disabilities the Assistant Secretary notes:

“Under Section 504, every student with a disability enrolled in a public school, including a public charter school, must be provided a free appropriate public education–that is, regular or special education and related aids and services that are designed to meet his or her individual educational needs as adequately as the needs of students without disabilities are met.  Evaluation and placement procedures are among the requirements that must be followed if a student needs, or is believed to need, special education or related services due to a disability.

Charter schools may not ask or require students or parents to waive their right to a free appropriate public education in order to attend the charter school. Additionally, charter schools must provide nonacademic and extracurricular services and activities in such a manner that students with disabilities are given an equal opportunity to participate in these services and activities. ‘

The letter concludes by discussing discipline and notes:

“All public schools, including charter schools, are obligated to avoid and redress discrimination in the administration of school discipline on the basis of race, color, or national origin; disability; and sex. This obligation applies over the entire course of the disciplinary process, from behavior management in the classroom, to referral to an authority outside the classroom because of misconduct, to resolution of the discipline incident. The Guidance on the Nondiscriminatory Administration of School Discipline25 offers detailed assistance on how to identify, avoid, and remedy discriminatory discipline. The discipline guidance document focuses on racial discrimination, but much of its analytical framework also applies to discrimination on other prohibited grounds. In addition, when addressing discipline for students with disabilities, it is important that charter schools comply with applicable legal requirements governing the discipline of a child for misconduct caused by, or related to, the child’s disability.”

Finally the Assistant Secretary notes that OCR and the Office of Special Education and Rehabilitation Services plan to issue a joint guidance letter on the rights of students with disabilities who attend charter schools.

 

Vague IEP Description of Assistive Technology (AT) Impeded Students Access to writing technology

Parents, advocates, and educators frequently ask how much detail is required when writing a service on an IEP. Here’s a case that helps answer that question. In Minneapolis Special School Dis. #001, 62 IDELR 276 (SEA MN 2013), the Minnesota State Education Agency (SEA) found that AT services on a student’s IEP were too vague to be implemented.  The student’s IEP stated that he needed assistive technology for his written work but only indicated that “a tape recorder is an option that could be tried” and that “a portable word processor with predictive language software, can be available to him.” After the student refused to use the the school’s portable word processor, the parents filed a due process complaint.

The Hearing Officer ruled for the parents, explaining that the school staff responsible for implementing the IEP must be informed of their specific responsibilities and must be informed of the specific accommodations the student needs. Here, the district failed to identify what particular assistive technology the student needed and how to incorporate the technology into the student’s curriculum. The IEP provision was so vague it “left the implementation of the adaptations open to the subjective interpretation of the student’s teachers and the parties.” Additionally, the IEP failed to describe and explain to the school staff their specific responsibilities and duties regarding the student’s modified curriculum and required accommodations. This violated the IDEA. The school district was ordered to provide compensatory services for the student and to train its staff in how to properly develop and implement future IEPs.

In light of student’s increased absences, the School district should have revised her 504 Plan

In San Diego Unified School District, 113 LRP 15333 (OCR 01/31/13) a California school district learned that a 504 Plan is not a static document and if there are indications that a student’s disability related needs have changed, the school district should consider revising the 504 Plan. In this case the student has serious medical conditions and was missing a lot if class time. The school district developed a 504 Plan that included extra time in assignments, exemption from PE, and a pass to see a nurse when she felt ill. Despite these accommodations, the student’s health continued to hinder her attendance and academic performance. Rather than revise the 504 Plan, school administrators told the parent, she should look for an alternative setting for the student. They explained that this high school was a “comprehensive high school” and that other district schools “typically deal with more challenged, health related anomalies.”

After an independent evaluator diagnosed the student with dyslexia and dysgraphia, the parent  requested changes in the 504 plan to address the new diagnoses. The school district, however, believed these were only mild forms of these conditions and refused to change the 504 Plan.The parent then hired a private tutor to assist her daughter and filed a complaint with the Office for Civil Rights (OCR) for violations of 504. OCR determined that as the student’s attendance and academic performance continued to deteriorate, the district should have reviewed and modified the 504 Plan. Here, the district could have offered home tutoring or other services to assist the student with keeping up with her assignments when her health required she stay home. The Office for Civil Rights noted that instead of reviewing and modifying the plan, the school put the burden on the student and her family to look for another school to more accustomed in “dealing with more challenged, health related anomalies.” Again, 504 Plans are not static documents and must be reviewed and modified as a student’s needs change.

 

Recent OCR School Service Animal Resolutions

     This post will provide a summary overview of several recent Office for Civil Rights (OCR) resolutions involving students with disabilities  and service animals.

      In  School Admin. Unit #23 (NH), 113 LRP 32108 (OCR 05/22/13), resolved a complaint with a New Hampshire school district regarding a dog that alerted when the student was having a seizure. The school district agreed to train two aides in how to handle the dog. Moreover, the district agreed to revise its service animal policies and procedures, train staff on how to respond to the presence of service animals, and publish the approved policy on the district’s website and in student handbooks.

     In Catawba County (NC) Schs.,61 IDELR 234 (OCR 2013) the school district had refused to allow a student with self injurious and eloping behavior to bring his service dog to school. The dog was trained to help calm the student when he was having a “meltdown” and to retrieve him when he eloped from the school grounds.The principal and superintendent refused to permit the dog to accompany the student to school on the basis that its presence would “fundamentally alter the program and services of the school system.” OCR, however, determined that the dog would not interfere with the student’s IEP goals and would help him cope with his aggression. In its findings OCR noted that the principal had stated “I do not know what the dog does” and the superintendent didn’t know the dog’s function either. Thus, these two administrators had not bothered to learn why the student needed the animal. The district agreed to facilitate the student having the dog at school.

 Jackson County (MI) Intermediate Sch. Dist., 59 IDELR 172 (OCR 2012), a Michigan district decided that the tasks a service animal performed — helping the child with balance and support, retrieving dropped items, and taking off her coat — were already performed by an aide. Thus, there was no need for the student, an 8 year old girl with cerebral palsy, to have the animal with her at school. OCR determined that since one of the purposes of Title II of the ADA was to promote independence of persons with disabilities and, here, the service animal assisted the girl in being more independent, denying her the use of the animal was a violation of 504 and the ADA. To address Section 504 and Title II compliance concerns, the district agreed to develop a plan to fully and effectively integrate the student’s service animal into the school environment and to allow the animal to accompany the child during all school-related activities.

     Finally, in Alpine (CA) Union Elem. Sch. Dist., 112 LRP 49101 (OCR 07/19/12) a California school district agreed to resolve a complaint that it had not allowed a student with a disability to be accompanied by his service animal at end of the school year celebrations. As a result, the student had not had an opportunity to equally participate in those activities. To resolve the complaint, the district voluntarily entered into a agreement which commits to the following: 1) revising its service animal policy and Section 504 policy; 2) providing training on for all district staff regarding Section 504 and service animals; and 3) providing a letter to the student. The district further agreed to submit draft policies regarding service animals and Section 504 to OCR for review. Finally, the district will provide OCR with documentation regarding the district-wide training on service animals and Section 504.

Choosing home

Choosing home

They’re disabled, not retired or waning, but they’re being warehoused in nursing homes

  • Tessa Cheek
  • September 12, 2013
  • Dig In
  • 2 Comments

Choosing home 

This post is an article by Tessa Cheek and was first published on September 12, 2013 with The Colorado Independent

 

One hundred and thirty-nine Coloradans under the age of 65 who live with developmental disabilities are being warehoused in privately owned nursing homes throughout the state in violation of the Americans With Disabilities Act.

Lawmakers have been alerted to the problem since 2010, when the Colorado Department of Health Policy and Financing (HCPF) released a report on institutionalization in response to a U.S. Supreme Court decision involving a case called Olmstead vs L.C out of Georgia. The Court ruled, in accordance with the ADA, that the “unnecessary segregation of individuals with disabilities in institutions is a form of discrimination based on disability.”

Two governors and two executive orders later, Colorado’s numbers are down about half from 275, but critics say progress isn’t coming nearly fast enough. Advocates say officials don’t seem to feel any urgency but that young- and middle-aged nursing home residents lament that their lives are slipping away in the months and years they’ve been isolated from peers and cut off from the regular rhythms of daily life.

There’s often a “common theme” in the way bureaucrats deal with developmentally disabled clients, says Randy Chapman, director at the Legal Center for People with Disabilities and Older People, a federally funded law office that watchdogs nursing facilities and other institutions in Colorado. “These folks are viewed as having a place to be, as having ‘three hots and a cot’– but there’s not really the recognition that they’re being inappropriately institutionalized.”

When reviewing the state report in 2010, Chapman was astonished to find that, in addition to the 275 Coloradans institutionalized for developmental disabilities, there were almost 2,000 others institutionalized for mental illness. Of those, the majority are on Medicaid and a third are younger than 65 years old.

“We have no reason to believe that folks in nursing homes, without active monitoring, are free from abuse and neglect,” says Chapman. “Unfortunately, community and advocacy programs haven’t been targeting them because they have their hands full… Meanwhile, the people the Olmstead case was supposed to protect are being institutionalized and ignored.”

Please click here to see a video interview with Jennifer Blankenship discussing being free form the nursing home.

Presenting options

Colorado currently houses more people with developmental disabilities and mental illness in nursing homes than in all state-run facilities combined. Nationally, some 200,000 Americans under 65 live in nursing homes, accounting for 16 pecent of the total nursing home population.

Despite national and local efforts following the Olmstead decision, a July report prepared for the U.S. Senate found that “the population of individuals with disabilities under 65 in nursing homes actually increased between 2008 and 2012.”

Lorez Meinhold, who runs the Community Partnership office at HCPF, says her department is aware of the problem and is working on addressing it. She noted that the state launched the Colorado Choice Transitions program in March, mobilizing extra federal grant funding. “CCT is a $22 million, five-year grant initiative that is expected to move approximately 490 Medicaid clients from nursing homes into home and community-based settings,” reads a release from HCPF.

Meinhold notes that, as a result of the 2010 Colorado Olmstead recommendations, new nursing home residents are being asked if they would like to speak with someone about options tied to living in housing that’s more integrated with the community.

But the new policy has not been applied in every case.

Disintegration

Beth Will is one of many who fell through the cracks. For almost 30 years, Will – who has a brain disability — lived with support in an apartment in Glenwood Springs. She worked three jobs, one for 14 years. She has been with her common-law husband, Reggie Jaramillo, for 25 years, a decade of which they have lived together.

After being hospitalized with renal failure and severe cellulitis in 2011 and with her partner also ill, Will was discharged to a nursing facility to recover. Just over two months later, her physician noted that she was healthy enough to receive services in a group home. But in the system’s eyes, it was already too late.

“Reggie and I went in together,” Will explained of the couple’s admittance to a nursing home in Glenwood. “My Reggie, love of my life, love of my entire being, he got out in under 60 days, got his services outside. But I didn’t get out in time. I lost my services. Here I was supposed to be out in two weeks like Reggie, but I ended up in the nursing home for a year.”

For Will, who is 49 and used to a more independent life, it was a very long year. Once the staff at her nursing facility discovered that she liked grilled cheese, they served it to her for breakfast, lunch and dinner.

“Sometimes they would bring burned grilled cheese, I’d get upset, and everybody thought I was just being crazy,” Will says. “I take medication and usually I’d have to wait a long time. It could be as late as two or three in the morning when they would bring me my medicine… I’d be laying there, pushing the caller button for hours.”

Will had lost the Medicaid waiver that entitled her to receive long-term care in a community setting. Accustomed to self-advocacy, she began to call everyone from her former providers at Mountain Valley Developmental Services to independent advocates, and even service coordinators based four hours away in Denver.

Will says each of those phone conversations began like this: “Hi, this is Beth, How are you? Save me, save me, save me! Oh please, I’ll never say another bad thing. I’ll never do another bad thing. Oh please, get me out.”

Jennifer Shook, who advocated for Will on behalf of the Legal Center, says that medical professionals did not clear the long-term stint in a nursing home with Will herself. “The problem is that other options weren’t provided,” Shook says. “They just decided.”

Days turn to years

Will was not alone in that experience. Many people living with disability or chronic illness become sick and find that their treatment results in extended institutionalization.

Jennifer Blankenship, 52, lived independently since she was diagnosed with primary progressive multiple sclerosis in 1984. A series of chronic urinary tract infections landed her in the hospital in 2011, followed by nearly two years living in a nursing home in Lakewood.

“Institutions are dehumanizing,” she says. “You completely lose your identity. You give away all of your power. I was on so many meds the whole time I was there — six narcotics and valium.”

Blankenship fought for over a year to get released from Mapleton Care Center. She is sharing an apartment in Broomfield with her close friend and caregiver, Chris Anderson. Now that she is living independently, Blankenship notes that she takes only one aspirin a day. She feels like she has finally awoken after a long and troubled sleep.

“People more or less go to nursing homes to die, and I wasn’t ready,” she says. “No one has a clue what it’s like. Even the people who work there have no idea. They get to go home on the weekends. The weekends felt like years for us.”

Although Blankenship and Will were among dozens of Coloradans under 65 who managed to finally move out of nursing homes, many more have grown too accustomed to nursing home settings to consider leaving.

Since 2010, the Legal Center has visited more than 30 nursing facilities in the state asking young residents whether they want to live.

“We have to remember we’re complete strangers coming into their [nursing] homes and asking if they’re happy,” says Shook. “In some cases they’ve been in a nursing home for something like 25 years. The staff are their family. The idea of being out, of not having that structure, is really scary. In some cases they don’t know what their options are. In others, they can’t imagine not being there.”

A ‘big family’

Donald Nagel, 56, has been living in a Cottonwood Care Center, a nursing home in Brighton, for just over a year. It’s the latest in a long line of similar facilities from which he bounced throughout the state over the course of three years after several ruptured disks in his spine landed him in a wheelchair.

Nagel remembers times when he smoked three packs of cigarettes a day washed down with three fifths of Jack Daniels. Now he’s down to a strict regimen of six cigarettes smoked during six trips to the nursing home’s shaded entryway. Those smoking breaks, and the trips back and forth down the long hall to his room, make up the rhythm of his days.

Cottonwood Care Center, Nagel explained, is by far the best of any nursing home he’s lived in. He receives regular physical therapy for his back and vows to some day walk away from his wheelchair. Though he wouldn’t mind living in an apartment in Brighton, a town he’s come to like, Nagel doesn’t plan on leaving the comforts and services of the care center any time soon.

“I like it a lot here,” he says. “These people have done a hell of a lot more for me than anyone else has. Yes, it’s humanizing. Yes, we’re a big family.”

Nagel has found a role in that family. Full-blooded Irish, he loves to sing ballads to fellow residents. We sat in the care center’s privacy room (an unusual and much-appreciated feature, according to Nagel) while he sang softly to me.

Strangers came and tried to teach us their ways
they scorned us for being what we are.
Well they might as well go chasing after moonbeams
or light a penny candle from a star.

“There’s things I’ve done for people here that I normally don’t do for other people,” Nagel says. “One of the older residents from the other unit asked me to fix his pocket radio. I had it fixed in five minutes. He wanted to pay me but I said no, not possible.”

Some young and middle-aged residents stay in nursing because the discharge process is often arduous and confusing. Nagel, for his part, stays because he has found here a sense of belonging and purpose that he would miss living on his own.

Despite evaluation statistics showing that a majority of young people admitted to nursing facilities say they hope to leave, the vast majority ultimately choose to stay. Blankenship and Will were two of only a handful of Coloradans to accept the Legal Center’s offer to help find housing outside their nursing homes.

In Will’s case, the state continued to deny her funding months after she was approved to regain her community-based services. Ultimately her case’s managing attorney, Bill Higgins, wrote a long letter outlining the state’s violations of the Olmstead ruling and the Americans With Disabilities Act. A month later, Will was discharged.

The potential

For both Blankenship and Will, the transition back into the community with help from the Legal Center and their own Medicaid-funded care providers took about a year of bureaucratic red tape. Both are painfully aware that others, disempowered and often medicated like zombies, are still warehoused in facilities meant for residents many decades older..

“At the end I was terrified,” Blankenship says of the seemingly interminable weeks when her release from the nursing home started to seem real. “It felt like even one more hour in there and I wouldn’t survive.”

It has been only a handful of months that Blankenship has spent in her sunny new apartment in Broomfield. To her, the time has passed so quickly that it seems like only a handful of days. Life, she says, is so much more sweet, bright and full on the outside than the inside.

“Even a banana from the market is so fresh and so flavorful,” Blankenship sighed. “The food at the nursing home is bought in bulk so truly it all tasted like pudding.”

Breaking out of institutionalization has in many ways given Blankenship her life back. She is living like a woman her age – in her 50s – rather than someone of her mother’s generation waiting for death. She pauses sometimes, fighting back tears, as she describes the joy of occupying a world of renewed hope and life, including her new kitten, Monster, who is somersaulting on the couch beside her.

“My favorite thing about living here?” Blankenship laughed, beaming as she looked around her new home. “The potential.”

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