Ninth Circuit Rules that Limiting Parents’ Expert’s Class Observational Time Does Not (in this instance) Violate IDEA

    In L.M. v Capistrano Unified School District, the Ninth Circuit Court of Appeals determined that limiting the parents’ classroom observational opportunities to twenty minute sessions, while the school district was allowed to observe the student in his private placement for up to three hours, did not significantly restrict the parents’ right to participate in their son’s IEP. Does this mean school districts are allowed to significantly restrict  parents’ experts classroom observational time? Not necessarily. As with most judicial decisions, this decision had unique facts. 

This case out of California, involves, L.M., a three old boy with autism and his initial placement in public school. Before his third birthday L.M. received fairly intensive early intervention services. These services included speech-language therapy, occupational therapy (OT), and a one-to-one in home behavioral program. (For more information on early intervention services please see my post:  Taking Giant Baby Steps: Early Intervention Services Under Part C).

Later, the parents paid privately for additional hours of one-to-one services. Eventually, his one to one time was increased to twenty five hours a week. In planning for his transition to public school at age three, the school district offered a program in an elementary school. The public school program in the elementary school offered individual intensive behavior instruction for four hours per week, speech language therapy for two thirty minute sessions per week, OT for thirty minutes per week, and extended school year services. The parents attended the IEP meeting but did not accept the proposed program.

 

When L.M.  turned three years old, his parents continued to privately pay for services while they met with the school district to develop an IEP for placement in the public schools. After the initial IEP meeting the parents visited the proposed elementary school twice, including once with a licensed psychologist who was the parents’ expert. The expert asked to observe the proposed program for a continuous ninety-minute period. The school, however, limited her observations to twenty minute increments based on a district wide policy intended to limit classroom disruption. The expert was allowed additional twenty minute observation sessions, but she did not do so because of the time and expense involved in commuting to the school.

 

Eventually, the parents rejected the school district’s program and requested a due process hearing. The hearing officer generally ruled for the parents, ordering the school district to reimburse the parents for  the cost of providing the in-home program from January 22, 2005 to April 7, 2005.

 

 The parents, however, were also seeking reimbursement after April 7th and relying on the fact the school district had violated a California law requiring it to provide the parents an equivalent opportunity for classroom observation when conducting an independent educational evaluation (IEE).  This California law is similar to the requirements in the IDEA regulations and for more information regarding independent evaluations and the evaluators access to the classroom please see From the Outside Looking In: Independent Educational Evaluations).  

 

The hearing officer determined that the school district violated the California statute, but the parents still had the opportunity to participate in the hearing with an expert witness prepared to provide a “knowledgeable opinion about the proposed placement.” Thus, limiting the expert’s observations to twenty minute sessions was harmless. Importantly, the hearing officer noted that the expert testified that she was still able to develop opinions about the proposed elementary school program.

 

The parents appealed the hearing officer’s decision to federal district court. The district court overturned the hearing officer’s decision, concluding that limiting the parents’ classroom access deprived them of the right to meaningfully participate in the IEP process. The school district appealed and the Ninth Circuit Court of Appeals reversed the district court, determining that limiting the expert’s classroom observation time did not significantly affect the parents’ participation in the IEP process.

 

It is important to note that in making this decision, the Ninth Circuit noted the specific facts in this scenario. The parents’ expert could have gone back for additional twenty minute observation sessions, but decide not to. Moreover, the expert conceded that she was able to provide the parents with an informed and independent opinion and she didn’t testify about specific additional information she might have obtained with the extended time. If the parents’ expert had been able to: (1) point to specific information that she could have obtained through extended classroom observation; and (2) that without that extended observation time she could not provide the parents with an informed and independent opinion, the outcome might have been different.

 

So, I think this decision does not mean parents’ experts aren’t entitled to an equal time when observing a child in the classroom. It means parents’ attorneys should make sure that time is necessary for the expert to provide an informed and independent opinion. Moreover, it is very helpful if the expert can point to specific helpful information that might be able to obtain with that additional time. Finally, this decision, though instructive, is only binding on courts in states and territories within the Ninth Circuit. These states are Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Marian Islands Oregon, and Washington.

 

Services Plans for Parentally-placed Private School Children with Disabilities

     Some students with disabilities attend private rather than public schools. There are three scenarios in which a student with a disability might be placed in a private school. First, the public school district places the child in a private school because it believes the private school is better able to provide a free appropriate public education to the child than the public school. In this scenario the private school placement would be recommended by the student’s IEP team, and the public schools must ensure the child receives services at no cost to the parents. Second, the student’s parents place their child in the private school because the parents believe the public placement is inappropriate and the private placement will provide a free appropriate public education. In this circumstance the public schools may be responsible for the costs of the private placement if the parents can establish that, (a), the public school program is inappropriate, and (b) the private program will provide a free appropriate public education. Third, the parents choose to place their child in a private setting and providing a free appropriate public education is not an issue. Under the IDEA these students are referred to as parentally placed private school children.

 

          Parentally-placed private school students are entitled to some services from the public schools but, they are not entitled to the same services they would receive if enrolled in a public school program. Parentally placed private school children are entitled to child find services. But, parentally placed private school children do not have an individual right to receive the same or all of the special education and related services the students would receive if enrolled in public school.  

 

          In fact, the fiscal amount school districts must spend on providing services to private school children is limited. The public schools are only required to spend on parentally-placed private school children an amount proportionate to the number of private school children with disabilities compared to the number of public school children with disabilities. This proportion is determined, district by district, based on the number of students with disabilities living in each district. To determine how the district will spend that allocation, school districts must consult with representatives of private schools within their districts.

 

          If a student with a disability is enrolled in a private school, but will receive special education services from the school district, then the district must develop a services plan for the student. A services plan is similar to an IEP, but developed specifically for students in private schools who receive special education services from the public school district. The plan must specifically describe the special education and related services the private school student will receive from the school district. In developing this plan, however, private school children may receive a different amount of services than students in the public schools. The services are provided based upon the school district’s allocation of funds for private school children and the plan the district has developed, in consultation with private school representatives, to serve private school children.

 

          Services to private school children may be provided at the public school, at a service site, or at the private school. A service site is a place where the student receives services that is not the public school or private school. For example, a service site might be a community library or other community center where the student might receive services. If a student requires transportation, to benefit from the special education services being provided, then transportation must be provided. But the school district is not required to transport students from their home to the private school or from the private school to their home. Transportation can be provided from the student’s home to a service site, or from the student’s home to the student’s public school.

 

         Appeal Process for Parentally-Placed Private School Children

 

          Parents who choose to enroll their children in private schools do not have the same due process procedures available to them as parents of children in the public schools. Private school parents may not use the due process hearing procedures to appeal the services plan or the district’s failure to comply with the service plan. Those issues can be taken to the State Education Agency through the State Education Agency Complaint Process. Parents of private school children, however, may use the due process hearing procedures to appeal issues regarding the district’s child find obligation to locate, identify, and evaluate children with disabilities.

 

Helping Parents Help their Students with Disabilities: Related Services to Support Parents

   Under the IDEA, students with disabilities must be provided the related services they need to benefit from their special education program. In most circumstances those services are provided to the child with a disability, but there are circumstances in which the IDEA requires that services be provided to the parents, and sometimes, others. In particular the IDEA states that counseling and training may be provided to the student’s parents.

 

          Parent counseling and training means assisting the parents in understanding their child’s special needs, providing the parents with information about child development, and helping parents acquire necessary skills that will help them to support the implementation of their child’s IEP or IFSP. Moreover, the IDEA specifically mentions four circumstances when parent counseling and training might be provided in conjunction with providing related services to the child with a disability:

 

(1)   Audiology services can include counseling and guidance of children, parents, and teachers regarding hearing loss;

(2)   Psychological services can include planning and managing a program of psychological counseling for children and parents;

(3)   Speech language pathology services includes counseling and guidance of parents, children, and teachers regarding speech language impairments; and

(4)   Social work services in schools include group and individual counseling with the child and family.

 

Additionally, when a child needs assistive technology services  those services can include training or technical assistance not only for the for a child with a disability, but, if appropriate, that child’s family. Assistive technology devices (AT) are items and pieces of equipment that are used to increase, maintain, or improve functional capabilities of children with disabilities. It makes sense, for example, if a child was provided with an augmentative communication device, that both the child and the child’s family may need training in how to use the device. Likewise, assistive technology services can include “Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers or other individuals who provide services to employ, or are otherwise involved in the major life functions of that child.” Again, it makes sense that if the child is using the AT device in school or on a job site that, in addition to the child, the educational professionals or employer receive training in how to use the device.

 

There are some case examples in which hearing officers have ordered school districts to provide services to the student’s parents. In In re: Student with a Disability, 50 IDELR 120 (SEA NY 2008), a New York state review officer ordered the school district to provide a parent training in multisensory strategies so that she could help her son with his reading skills at home. And in Redlands Unified School District, 49 IDELR 294 (SEA CA 2008) an administrative law judge ordered the school district to provide the student’s parents three hours a month of training. In the Redlands case the training was ordered as part of compensatory services to be provided to the student because the district had continued to use an ineffective behavior intervention plan implemented by an untrained aide. As a result, the student’s behavior deteriorated and he was unable to attend school.

 

Finally, there are circumstances in which sign language training for parents of children with communication impairments may be a required related service. The U.S. Department of Education has made it clear that if the IEP team determines that sign language training for a student’s parents is needed for the student to benefit from special education, then that training is a required related service. See Letter to Dagly, 17 IDELR 1107 (OSEP 1991) and Letter to Anonymous, 19 IDELR 586 (OSEP 1992). Of course, there may also be circumstances in which sign language interpreting (as opposed to sign language training) may be required to facilitate communication with parents who are deaf. In that circumstance, the sign language interpreting is being provided as an auxiliary aid or service under Section 504 and the Americans with Disabilities Act, and/or, it is a procedural safeguard requirement under the IDEA.