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.

 

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.

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.

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