Tuesday, October 30, 2007

Hearing Officer Blues: Decisions, Decisions

I am currently working on two due process hearing decisions. Those of you familiar with special education law understand that I absolutely cannot comment on the facts of the cases.

I do want to talk about the process of decision writing, however. This is one of the most important things that I work with hearing officers on while training them. It is a lot more difficult than it looks. There is generally a voluminous record: multi-volume transcripts and a ton of exhibits. From this jungle of paper we must cull findings of fact. Not everything in evidence, just facts of decisional significance. Then we must apply the facts to the law. The law sounds pretty simple, but in fact the IDEA is a huge statute, with amendments that appear to have been cut-and-pasted in almost random fashion, possibly by monkeys. For example, Section 615 is labeled "Procedural Safeguards," yet there are other procedural safeguards set forth in many other places in the Act, and at least a few (e.g., state complaints, the five-business day disclosure rule) that may be found only in the federal regs. Speaking of the federal regs, they must also be considered, including the 215 odd pages of fine print, tri-column analysis of comments by OSEP. Then of course, state regulations must be studied. It is a difficult and exhausting process.

So if I'm a little grumpy the next few weeks- excuse me.

I should note, however, that I love writing decisions. If the hearing officer does a good job, the decision should result in fair and just application of the law for the parents, the school district and the student. Hearing officer decisions are subject to appeal to court, as they should be, but the hearing officer generally has the first opportunity to fairly apply the law. Judicial review is an important safeguard, and courts are not hesitant to overturn poor hearing officer decisions. For the most part, however, courts are deferential to the decision if the hearing officer has been fair, reasonably thorough and careful in the application of the law. I recently learned that a federal district court has upheld a huge decision I had written a couple of years ago. That may seem like a long time, but unfortunately, it isn't. Even the Supreme Court has commented in the Burlington decision about the very long time it takes to resolve a special ed dispute. This is not what they intended in the mid seventies, but it is where we are now. Once again, we take the law as we find it!

Now, back to work...

Monday, October 22, 2007

Special Education Law 101- Part III

As explained in a previous post, I have decided to post a series of Special Ed Law 101 articles to give those outside the SpEd (special education) circle a better chance of understanding what we mean and to get more people hooked on this ever-growing field.

Special Ed Law 101- Part III

The IDEA definition of FAPE, as explained in Part I of this series, includes both special education and related services. This post involves a discussion of issues pertaining to related services.

Related Services

The IDEA defines related services as follows:
(A) IN GENERAL- The term ‘related services’ means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free and appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education…
(B) EXCEPTION—The term does not include a medical device that is surgically implanted, or the replacement of such device.
IDEA, Section 602(26). See, 34 C.F.R. Section 300.34.

So a related service is transportation or other developmental, corrective or other supportive services that are required to assist a child with a disability to benefit from special education. If the related service is required for the student to benefit from special education, FAPE requires that the school district provide the related service.

The issue of related services has resulted in two decisions by the United States Supreme Court. The first decision was Irving Independent Sch. Dist. v. Tatro 468 U.S. 883, 104 S.Ct. 3371, 555 IDELR 511 (1984). The Court affirmed the Court of Appeals holding that a procedure known as clean intermittent catheterization was a related service because the student could not attend school without it and, therefore, without the procedure she could not benefit from special education. Tatro, supra. The Supreme Court also affirmed the holding of the Court of Appeals that clean intermittent catheterization is not exempted by the medical services provision because the procedure did not have to be performed by a doctor, it could be done by a layperson with an hour of training. Tatro, supra.

The second decision was Cedar Rapids Community Sch. Dist. v. Garret F. 526 U.S. 66, 119 S.Ct. 992, 29 IDELR 966 (1999). In this case, the Supreme Court held that urinary bladder catheterization and suctioning of tracheotomy plus various monitoring was a related service. Garret F., supra. Applying the “bright line” test of the Tatro decision, the Court held that because the related services did not have to be performed by a physician, the medical services exclusion did not apply and the schools were required to provide the services for the student. Garret F., supra. The Court specifically and emphatically rejected the argument raised by the schools that the cost of providing the services was a defense. Garret F., supra.

Thanks for Your Support-Tenth Place!

I understand that this blog finished in tenth place for best educational blog and tenth place for best business blog in the Blogger's Choice Awards. In order to vote, people had to first register and then reply to an email, so there was some effort involved. Thank you to all the people who voted for this blog. I really appreciate your support.

Tuesday, October 16, 2007

Supreme Court Decides Not to Decide

Yesterday the U. S. Supreme Court denied certiorari in the case of BD. OF ED., HYDE PARK V. FRANK G., ET UX., Case No. 06-580. Denying cert means that the Court has declined to review the decision of the Circuit Court of Appeals. The Second Circuit decision involved was very similar to the Tom F. case which recently resulted in an anticlimactic 4 to 4 tie. The same issue was presented: whether the parents of a child with a disability who has never received special education from a public school district may receive reimbursement for a unilateral placement of the child in a private school after denial of FAPE by the public school district.

Interestingly, Justice Kennedy once again recused himself (ie, he took no part in the decision to deny cert.) I'm wondering whether he had done some legal work for the school districts involved. Maybe he has a grandchild with a disability? If anybody has another theory, please let me know. The mystery of the recusal of the swingman lives!

We may have to wait a while before we see another high court special ed law decision. Hopefully not too long.

Thursday, October 11, 2007

New Supreme Court Decision

The U. S. Supreme Court yesterday in Board of Education of the City of New York v. Tom F. affirmed the decision on the Second Circuit Court of Appeals upholding the ruling that a parent of a student with a disability may seek reimbursement for a unilateral placement in a private school even though the student never received special education services from the public schools. The per curiam decision of the court was based upon the Court being equally divided, 4 to 4, with Justice Kennedy having recused himself. A copy of the one page decision may be found at http://www.supremecourtus.gov/opinions/07pdf/06-637.pdf

Per curiam decisions are decisions issued in the name of the Court rather than under the names of specific justices. In the past, per curiams were used for non-controversial and often unanimous matters. They generally can be cited as precedent and are considered good law, but the tie prevents this decision from being precedential. NOTE: The nature of per curiam decisions may have changed. For example, the Bush v Gore decisions were both per curiam decisions.

Wednesday, October 10, 2007

Special Education Law 101- Part II

As explained in a previous post, I have decided to post a series of Special Ed Law 101 articles to give those outside the SpEd (special education) circle a better chance of understanding what we mean and to get more people hooked on this ever-growing field.
Special Ed Law 101- Part II

The Requirement of LRE (least restrictive environment)

In addition to the requirement of FAPE, which was discussed in a previous post, the IDEA also requires that to the “…maximum extent appropriate, children with disabilities … are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs 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. IDEA, Section 612(a)(5). See, 34 C.F.R. Sections 300.114 to 300.119. This is known as "LRE."

The Supreme Court has not yet ruled on the issue of LRE, but a number of Circuit Courts of appeal have provided some guidance. For example, the Fifth Circuit has developed a two pronged analysis: the first question is whether education of the student with a disability in the regular classroom, with the use of supplemental aids and services, can be satisfactorily achieved, and if it cannot, whether the school district has provided the student with interaction with non-disabled peers to the maximum extent appropriate. Daniel RR v. State Board of Education 874 F.2d 1036, 441 IDELR 433 (5th Cir. 1989). (See decisions in your circuit.)

The special education law, then, requires that a child with a disability be provided a FAPE(free and appropriate public education) and that it be provided in the LRE (least restrictive environment that is appropriate for the child).

Tuesday, October 2, 2007

Oral Arguments at the U. S. Supreme Court

I was able to attend the oral argument at the U. S. Supreme Court yesterday in the IDEA case of Board of Education of City of New York v. Tom F., Case No. 06-637. Despite my many years practicing law, I am always awestruck when I enter that Courtroom. The highest court in the land does an impressive job of creating a special atmosphere.

When the oral argument began, Justice Kennedy left the Courtroom. Apparently he recused himself from the case and will not take part in the decision. The most active questioners were Justices Alito, Scalia and Chief Justice Roberts. Souter and Ginsburg asked a few questions, and Bryer, Stevens only asked about one area each. Thomas said nothing, although at one point he and Bryer had a very polite private conversation for few moments. I was more surprised by their civility than anything.

The thrust of the questions from Alito, Scalia and Roberts to the school district attorney concerned what purpose could be served by reading the statute to mean that Congress meant to require that a student with a disability be kept in an inappropriate placement for just a short period of time.

The questions that Alito, Scalia and Roberts asked of the parents' attorney and the Solicitor General (who argued in favor of the parents' position) centered on whether the language used by Congress was really ambiguous and whether the intent of Congress was to keep "well-healed" parents who have no real intention of putting their children in public school from obtaining reimbursement.

I was shocked by one argument made by the attorney for the school district. He showed a high level of disrespect for his state's due process hearing system. He stated that at a reimbursement hearing, the parents present a pile of evidence showing all the progress that the student has made at the private school. He said that there is a "dynamic at these hearings" where the hearing officer finds denial of FAPE because the private school provides a better program. I'll admit that I'm a bit biased here because I am a hearing officer for a few states, because I train hearing officers and because I consult with states on hearing system issues (for the record, I do no work for New York), but this is ridicules. If the state hearing officers are not applying the law correctly, the state should provide better training to its hearing officers and better oversight of its hearing system. The strongest argument by the school district was that the new language must mean something, even if only one more temporary hurdle before reimbursement may be claimed.

I was surprised that the parents' attorney and solicitor general did not argue more strongly that denial of FAPE for a short time was very bad- sort of a civil rights based argument. They touched on this but only en route to more elaborate arguments concerning the use of language, most specifically "only if," used by Congress elsewhere in IDEA. Statutory construction arguments can be fairly tedious.

I never try to predict these because at least some justices ask hard questions of the side they intend to support. This helps with decision writing.

It was only one hour, but I had a lot of fun. I can't wait to see the decision, although I predict once again that the impact of the decision will be less tragic than predicted by either party to this proceeding. It would be nice to have the high court give us some guidance on a more general topic- like LRE for example, but we take the law as we get it!