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.

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.

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.

School breaks, including summer, do not extend the time frame for conducting initial evaluations

I frequently hear from parents that they have been told by school staff that their child could not be evaluated for special education eligibility because school was out for the summer and staff were not available. Melody Musgrove, the Director of the Office of Special Education Programs (OSEP), advised the Director of Special Education in North Carolina that school breaks do not lengthen the time frame for conducting initial evaluations [Letter to Reyes, 59 IDELR 49 (OSEP April 2012)].

The IDEA regulations at 34 CFR 301(c)(1) require that an initial evaluation be conducted within 60 calendar days after receiving parental consent for the evaluation.  States may establish their own time frame (in this case North Carolina had established a 90 day time frame) but the state must complete the evaluation within that time frame. There are some other exceptions to meeting the time frame, for example if the parents do not make the child available for the evaluation (see 34 CFR 300. 301(d)) Ms. Musgrove acknowledged :

“ that conducting evaluation activities during extended breaks, such as the typical school’s summer vacation, can be challenging for school districts, particularly if fewer staff members are available. Nevertheless, the IDEA contemplates that the initial evaluation of a child suspected of having a disability not be unreasonably delayed so that eligible children with disabilities are not denied a FAPE.”

Thus, it is clear that initial evaluations must be completed with the IDEA 60 day timeline (unless the state has established another timeline) and that timeline is not extended during school breaks, including summer months.

General Education “Innovative Teaching Practices” must be Included in an IDEA-Eligible Student’s IEP

A school district must develop an IEP for a student with a disability even though the instruction the student needs is part of the district’s general education program or “best teaching practices.” In Letter to Chambers 112 LRP 37475 (OSEP 05/09/12), Office of Special Education Program (OSEP) Director Melody Musgrove, advised a Massachusetts advocate that school districts “must provide a child with a disability specially designed instruction that addresses the unique needs of the child that result from the child’s disability, and ensures access by the child to the general curriculum, even if that type of instruction is being provided to other children with or without disabilities, in the child’s classroom, grade, or building.”

Ms. Musgrove responded to a letter from the advocate concerned that school districts in Massachusetts consider that some services or types of instruction, such as counseling, social skills training, and modified teaching methodologies are not special education because they constitute best teaching practices. Thus, the districts decided that these services did not meet the “legal definition” of “special designed instruction” or “related services” and, therefore,  children with disabilities needing those services were not eligible for an IEP. The OSEP Director, however, clarified that: “The IEP Team is responsible for determining what special education and related services are needed to address the unique needs of the individual child with a disability. The fact that some of those services may also be considered ‘best teaching practices’ or ‘part of the district’s regular education program’ does not preclude those services from meeting the definition of ‘special education’ or ‘related services’ and being included in the chld’s IEP.”

Ms. Musgrove concluded by noting:

“OSEP recognizes that classrooms across the country are changing as the field of special education responds to innovative practices and increasingly flexible methods of teaching. While the needs of many learners can be met using such methods, they do not replace the need of a child with a disability for unique, individualized instruction that responds to his or her disability and enables the child to meet the educational standards within the jurisdiction of the public agency that apply to all children.”

Preschool Children with Disabilities Have Right to Least Restrictive Environment

There is frequently confusion regarding how least restrictive environment (LRE) applies to preschool children with disabilities. Preschool-aged children with disabilities are children with disabilities aged three to five and, at a state’s discretion, two-year old children who will turn three during the school year. In a Dear Colleague Letter 58 IDELR 290 (OSEP Feb. 29, 2012), Melody Musgrove, Director of the Office of Special Education Programs (OSEP), reiterates  that the least restrictive environment (LRE) requirements of the IDEA apply to all children with disabilities under Part B of the IDEA, including preschool aged children. Ms. Musgrove notes that the LRE requirements of the IDEA  state that “to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, must be educated with children who are not disabled. Further, special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occur only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” These long-standing IDEA requirements do not distinguish between school-aged and preschool-aged children. The U.S. Department of Education, however, continues to receive questions regarding LRE and preschool children. Thus, Ms. Musgrove issued this letter reminding school districts that LRE applies to preschool children with disabilities.

The letter reviews the  process for placing students with disabilities, including preschool-aged students, in the least restrictive environment. The placement is based on the child’s IEP and the IEP must include an explanation of the extent to which the child, if any, will not participate with children without disabilities in a regular class. Moreover, before a preschool child with a disability can be placed outside the regular education environment, the group making the placement decision must consider whether supplementary aids and services could be provided that would enable the child to be educated satisfactorily in the regular education environment .

Ms. Musgrove clarifies that school districts must ensure that preschool children with disabilities are educated in the least restrictive environment, regardless whether the district operates public preschool programs for children without disabilities. To that end, a school district may provide services to a preschool child with a disability in a variety of settings, including a regular kindergarten class, public or private preschool program, community-based child care facility, or in the child’s home. Districts that offer a public preschool program may serve a preschool child with a disability in that program. But, districts that do not have a public preschool program must explore alternative methods to ensure preschool children with disabilities are placed in the least restrictive environment. Those methods include (1) providing services in preschool programs offered by other public agencies (such as Head Start or community-based child care); (2) enrolling children in private preschool programs for children without disabilities; (3) locating classes for preschool children with disabilities in regular elementary schools; or (4) providing home-based services.

Hopefully, this letter will help clear up the confusion regarding LRE and preschool children with disabilities. The LRE requirements of the IDEA’s PART B apply to preschool aged children that same as they apply to children aged three and older. But it may take some planning and creativity to implement these requirements.

Decisions Regarding Students Using Service Animals at School Must be Made by a Group and Consider Individual Circumstances

Section 504 requires that school districts consider a student’s request to bring a service animal to school individually and, like most issues involving students with disabilities, the decision must be made by a group of persons and based upon information from a variety of sources. In Colorado Springs CO School District #11, 56 IDELR 52 (OCR 2010) the Office for Civil Rights determined that the school district’s failure to formally consider whether a service animal was an appropriate accommodation for a high school student with spastic quadriplegia violated Section 504. In this case the student, a freshman in high school, had been accompanied by his dog at school since second grade. In 2009 the school principal banned the dog from the high school because a teacher had significant allergic reactions to the dog’s presence in school. The student’s mother requested an IEP meeting to consider adding the dog to her son’s IEP. While there was not an IEP meeting, there was  a meeting of several school staff with the parent. At the meeting the Special Education Facilitator informed the mother that the presence of the dog was not an academic matter and could not be included in her son’s IEP. The mother then filed a complaint with the Office for Civil Rights (OCR).

The Office for Civil Rights determined that the district violated Section 504 because it did not consider the student’s individual needs when it unilaterally decided not to include the dog on the student’s IEP. The school district was mistaken in its view that service dogs are outside the scope of the IEP process. In order to resolve the complaint, the school district agreed to convene a multidisciplinary team to make an individual determination whether the student’s use of the dog was necessary for him to receive a free appropriate public education. Moreover, the district was required to provide training to district staff that service dogs may be included on a student’s IEP or 504 Plan if the multidisciplinary so determines. Additionally, the training must address that multidisciplinary teams will consider information from a variety of sources, including the student’s need for a service dog.

The Office for Civil Rights made a similar determination in Trinity Area (PA) Sch Dist., 56 IDELR 143 (OCR 2010) and pointed out that holding the meeting was not sufficient if the team discussion focused only on the parent’s ability to prove the student’s need for a service animal. In that case the IEP team met but it did not give appropriate consideration to the student’s need for the animal. The student’s parents were the only members of the IEP team who were knowledgable about the use of service animals  and the team did not discuss how the dog’s presence might affect the student’s behaviors. Instead, the team focused solely on the effect the dog might have on students and staff with allergies. To be sure, OCR noted, the effect of the dog’s presence on staff and students should be considered, but the team needed to consider the particular student’s needs as well. In another service dog case Bakersfield (CA) City Sch. Dist., 50 IDELR 169 (OCR 2008), OCR discussed that school districts may offer a student alternatives to the use of a service animal, but those alternatives must address all of the functions the service animal performs for the student. Finally, and importantly, all decisions  regarding whether to allow a service animal on a school campus must be made on a case-by-case basis, and must be specific to the student and his or her service animal.

Thus, as is generally the case, decisions regarding services for students with disabilities are made by a multidisciplinary team, on a case-by-case basis, and specific to the student and the student’s individual needs.

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.