Monday, August 31, 2015

Weekly Question!

The Kentucky handcuffing incident has reignited the debate about abuse of seclusion and restraints. What do you think should Congress pass a law requiring training and notification?

Sunday, August 30, 2015

Rowley FAPE Standard: Some Vs Meaningful Educational Benefit #FAPEstandard

As I have said here many times, special education law is closer to metaphysics than it is to contract law.  We don't have many solid hornbook rules.  Even the FAPE standard- perhaps the best established principle in this ever-growing area of law- sometimes seems to have some wiggle room.

The basic requirement of the IDEA is that states must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter or“FAPE.” IDEA, Section 612(a)(1).  The IDEA defines “FAPE” as:  special education and related services that:
(A)  have been provided at public expense, under public supervision and direction, and  without charge;
(B)  meet the standards of the State educational agency;
(C)  include an appropriate preschool, elementary school or secondary school education in the state involved; and
(D)  are provided in conformity with the individualized education program required (…hereunder.).
IDEA, Section 602(9).  See also 34 C.F.R. Sections 300.101 to 300.113.

          The Supreme Court of the United States issued the seminal decision interpreting the provisions of the IDEA in the case of  Board of Education of Hendrick Hudson Bd. of Ed. v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982).  The facts of the case were that the student had a hearing impairment.  The parents requested that the schools provide a sign language interpreter for all of the student’s academic classes.  Although the child was performing better than the average child in her class and easily advancing from grade to grade, she was not performing consistent with her academic potential. Rowley, supra, 102 S.Ct at 3039-3040.  Holding that FAPE required a potential maximizing standard, the District Court ruled in favor of the student.  The U. S. Court of Appeals for the Second Circuit affirmed.  See, Rowley, 102 S.Ct. at 3040.  The Supreme Court reversed.  Rowley, supra, 102 S.Ct at 3052.  After a review of the legislative history of the Act and the cases leading to Congressional passage of the Act, the Supreme Court held that the Congress did not intend to impose a potential-maximizing standard, but rather, intended to open the door of education to disabled students by requiring a basic floor of opportunity. Rowley, supra, 102 S.Ct at 3043-3051.

          The Supreme Court noted that the individualized educational program, or “IEP,” is the cornerstone of the Act’s requirement of FAPE. Rowley, supra, 102 S.Ct at 3038, 3049.  The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act.  Rowley, supra, 102 S.Ct at 3050-3051.  The Court also cautioned the lower courts (and by implication, due process hearing officers) that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowley, supra, 102 S.Ct at 3051.  The Supreme Court held that instead of requiring a potential maximizing standard, FAPE is satisfied where the education is sufficient to confer some educational benefit to the student with a disability.  Rowley, supra, 102 S.Ct at 3048.  Accordingly, the Court concluded that the IDEA requires “…access to specialized instruction and related services which are individually designed to provide educational benefit to the …” child with a disability. Rowley, supra, 102 S.Ct at 3048.

            OK so that is close to a hornbook style rule, right. Unfortunately even here there is room for argument.

         Whenever a court discusses a FAPE issue, it invariably quotes Rowley, as it should.  But then some circuits state the standard as meaningful educational benefit; whereas some state the standard as some educational benefit. Many have argued that the latter standard is higher.

             This issue hit the fan in a Tenth Circuit decision issued last Tuesday. The case is Endrew F by Joseph F & Jennifer F v. Douglas County Sch Dist RE-I 115 LRP 39422 (10th Cir. 8/25/2015). In this case, the parents urged the Court to adopt the "higher" meaningful benefit standard. The court analyzed the issue and decided to apply the some educational benefit standard.

           The thing is that I don't think that the practical applications of the standard are different whether called meaningful or not.  The Supreme Court has spoken on the FAPE standard, and the circuit courts of appeal are not free to adopt a higher standard. In our system the Supremes get the final word. The Rowley standard is the law. Period.

       Also I don't see much difference in how the standard is applied on a given set of facts, regardless of whether the term meaningful is added by the courts.  The result is really the same for all practical purposes. Indeed, the Tenth Circuit hinted at this problem in its opinion. (The cool stuff is always in the footnotes.) In footnote number 8, the court noted that the difference between meaningful benefit and some benefit is not clear. I agree completely.

             You can and should read the Tenth Circuit's opinion here.  This argument will come up again.

              So what do you think? What the heck is the FAPE standard? And can't we agree on anything?

Tuesday, August 25, 2015

Are Traumatized Students §504 Eligible?

Kids who grow up in a ghetto are the subject of numerous traumas.  They experience more than their share of extreme stresses such as: street crime, domestic violence, race discrimination, routine violence, death and disruption. Are they, therefore, students with disabilities?

A recent lawsuit asserts that ghetto students are entitled to additional services under §504.  The lawsuit involves students growing up in Compton, California. The Compton Unified School District is the primary defendant. Plaintiffs are asking for a class action to be certified. The complaint includes a lot of social science research.  It is also the first complaint that I have ever seen with a diagram of the human brain right there in the pleadings. You can read the complaint here. A news article in Find Law is available here.

We should watch this case closely.  If these plaintiffs get any traction, I predict that you will see similar lawsuits around the country. This may be a blossoming hot button issue.

So what do you think about this?  Should all kids in extreme poverty be evaluated for a disability? How about those who show signs of anti-social behavior? Interesting, no?

Monday, August 24, 2015

Weekly Question!

The Kentucky handcuffing incident has reignited the debate about abuse of seclusion and restraints. What do you think should Congress pass a law requiring training and notification?

Friday, August 21, 2015

Special Education Law 101 - Part XVI Hearing Procedures 1 #SpecialEdHearing

This is another in a  series of posts comprising an introduction to special education law.  This series is meant to be an introduction for newbies and a refresher course for more experienced readers.  Please let us know what you think about the series.

Today's post and the next post concern some unusual procedural issues in due process hearings.  The due process hearing is the administrative law equivalent of a trial in a civil action.

A due process hearing resembles a court trial.  Increasingly, parties are represented by lawyers.  Opening statements are made.  Testimony is provided by parents, teachers, related service providers, administrators, and many others- often by expert witnesses.  Although the formal rules of evidence are generally not applied, exhibits, or documentary evidence, are offered and admitted.  The tone is increasingly adversarial.  Either closing arguments are made or written briefs are submitted.  Hearing officer decisions are generally lengthy and legalistic in tone.  The decision of the hearing officer may be appealed to one or more courts.

Parents and local education agencies may file a due process complaint for any matter related to the identification, evaluation, educational placement or the provision of a free and appropriate public education to a child with a disability. IDEA §§ 615(f);615(b)(6).

IDEA imposes a two-year statute of limitations on due process complaints.  Unless state law imposes a contrary limitations period, a party must request a due process hearing within two years of the date that the party knew or reasonably should have known about the alleged action that forms the basis of the complaint. § 615 (f)(3)(C).  The statute of limitations recognizes two exceptions – cases in which the parent was prevented from requesting the hearing due either to specific misrepresentations by the LEA that it had resolved the problem or to the LEA’s withholding of information that the IDEA requires it to provide. § 615 (f)(3)(D).  OSEP has clarified that a state may adopt a statute of limitations either shorter or longer than two years by statute or regulation, but not by common law, subject to the notification provisions of IDEA.  71 Fed. Register No. 156 at pages 46696-97 (August 14, 2006).  It is the province of the hearing officer to determine whether a specific complaint has been filed within the statute of limitations and whether an amended complaint relates to a previous complaint. 71 Fed. Register No. 156 at pages 46698 (August 14, 2006). 

In addition to the requirement that a hearing officer not have a personal or professional interest that would conflict with objectivity, three more qualifications for due process hearing officers were added in 2004.  The following new qualities are required in a hearing officer: the knowledge and ability to conduct hearings in accordance with standard legal practice; the knowledge and ability to write decisions in accordance with standard legal practice; knowledge of and ability to understand special education law.   § 615 (f)(3)(A)(ii)-(iv). The changes in the qualifications for hearing officers are significant.  The fact that the Congress amended this section signals at least some concern about hearing officers. SEA personnel who train and select hearing officers need to be mindful of these changes to the law.  Those who train hearing officers should be people with experience in conducting due process hearings and in writing decisions thereafter.  New hearing officers should be able to cite prior experience concerning these qualifications. OSEP has noted that pursuant to its general supervisory responsibility, each SEA must ensure that its hearing officers are sufficiently trained to meet the new qualifications established by IDEA. 71 Fed. Register No. 156 at page 46705 (August 14, 2006). 

IDEA provides that the party requesting the due process hearing “…shall not be allowed to raise issues at the due process hearing that were not raised in the (due process hearing) notice…,” unless the other party agrees. § 615 (f)(3)(B). see, 34 CFR §300.511(d); 71 Fed. Register No. 156 at pages 46705 -06 (August 14, 2006).  However, note that IDEA § 615 (o) provides that nothing in § 615 “… shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed.”

OSEP noted that states have considerable latitude in developing procedural rules for due process hearings and that determinations upon procedural matters not specifically addressed by IDEA are within the sound discretion of the hearing officer so long as the parties’ right to a timely hearing is not denied.  71 Fed. Register No. 156 at page 46704 (August 14, 2006).  Other items left to the discretion of the hearing officer include the following: decisions concerning appropriate expert witness testimony.  71 Fed. Register No. 156 at page 46691 (August 14, 2006); ruling upon compliance with timelines and the statute of limitations.  71 Fed. Register No. 156 at page 46705 (August 14, 2006);   determining when dismissals are appropriate.  71 Fed. Register No. 156 at page 46699 (August 14, 2006); whether the non-complaining party may raise other issues at the hearing that were not raised in the due process complaint.  71 Fed. Register No. 156 at page 46706 (August 14, 2006);  the meaning of the word “misrepresentation” for purposes of the exception to the statute of limitations for filing a due process complaint. 71 Fed. Register No. 156 at page 46706 (August 14, 2006); and providing proper latitude for pro se parties. 71 Fed. Register No. 156 at page  46699 (August 14, 2006).

Concerning the five business day rule for disclosure of evidence prior to a due process hearing, OSEP commented that nothing prevents parties from agreeing to a shorter period of time.  71 Fed. Register No. 156 at page 46706 (August 14, 2006).

As to the location and time of due process hearings, OSEP resisted the suggestion that they be conducted in a “mutually convenient” time and place, fearing that the large number of participants to a hearing would necessitate long delays if  mutually convenient times and locations were required.  The regulations retain the requirement that hearings be conducted at a time and place that is reasonably convenient to the parents and student.    34 CFR § 300.515(d); 71 Fed. Register No. 156 at page 46707 (August 14, 2006).

Here is a recent Q & A document from OSEP on Dispute Resolution Procedures under IDEA Part B.  For due process, see Q C-1 to C-27; for the resolution process, see Q D-1 to D-25, and for expedited hearings see Q E-1 to E-9:

Here is the OSEP Topic Brief on Due Process Hearings:

Tuesday, August 18, 2015

The Perils of Modern Air Travel- Part IV #AirlineBlues

Part of my job involves air travel, and that part can be difficult!

Last Saturday I had to fly on U S Airways from Columbus to Charleston, West Virginia. That apparently was the day of the power outage at the air traffic control center near DC. As a result, my first flight was delayed seven or eight times for about six hours total. 

This may sound familiar because I have mentioned it here before. The policy of the major airlines when they delay or cancel a flight is akin to "survival of the fittest." In essence the younger and faster passengers stampede over to the service counter and get the best flights, seats, accommodations, etc. The rest of us stand in line for the leftovers.  Foot speed is not my thing!

So I spent most of my six hour delay in Columbus standing in lines trying to ensure that the delays would allow my eventual connecting flight.  So six hours late I leave Columbus for Charlotte thinking that I have just minutes to make the connection.  (Remember the TV ad with OJ running through the airport- before his murder trial spawned our fascination with Kardashians...) So I find the gate only to learn that the second flight had been delayed again.  This was followed by three gate changes- the Charlotte airport is huge.  

Finally the dread announcement was made: the Charleston flight had been cancelled. No instructions were given, but the fast youngsters made a beeline for the service counter. I was approximately #39 in the long line when I arrived.  By the time I made it to up to the counter there were over 100 people in line. While I was in line, I tried calling the airline's 800 number, but the wait was between 1 hour and 4 minutes and 1 hour and 39 minutes. (How does the robot calculate these time periods I wonder?) So after waiting in line for forty-five minutes, I was booked on a flight the next morning.  I asked for reimbursement for meals and hotel.  After the clerk stopped laughing, she said that no provision is made for meals and that they do not reimburse for hotels but she could give me a "voucher." I took the voucher and called another 800 number. After being on hold for a little over thirty minutes, the person said that they would make a reservation for me at a discounted rate but that I would have to pay for it.  The discounted rate turned out to be not much of a discount when you add in the fee of the third party "Travelalliance." So then I exited near baggage claim and waited another thirty minutes for the motel shuttle along with several hundred other passengers. Have you ever noticed that all of the vans that shuttle for hotels look remarkably alike.

I did manage six hours sleep. And then flew out of Charlotte the next morning. I landed in Charleston approximately eighteen hours late. That was exhausting!

In this age of computers, can't the airlines develop a better way to deal with rerouting customers when they cannot deliver the flights that they have promised? Why not bring clerks to the gate and rebook people in the order that they would have boarded the plane? Unless their goal is to get their customers to hate them, wouldn't another approach make more sense?

Monday, August 17, 2015

New Weekly Question!

The Kentucky handcuffing incident has reignited the debate about abuse of seclusion and restraints. What do you think should Congress pass a law requiring training and notification?

Friday, August 14, 2015

Special Education Law 101 - Part XV #BurdenOfPersuasion

This is another in a periodic series on the nuts and bolts of special education law.  The series is intended as an overview of key concepts for beginners and a review for those readers who have been around the block.

The citations for information about due process hearings are:IDEA, § 615(f); 34 C.F.R. § 300.507 to .515

Concerning the burden of persuasion at due process hearings...

Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005). The Court held that the burden of persuasion in an IDEA due process hearing is upon the party challenging the IEP.  The “burden of persuasion” involves which party loses if the evidence is closely balanced.  In any civil legal proceeding, if the evidence for both sides is equal, the party with the burden of persuasion loses.  The Court exempted from its decision, however, the burden of persuasion applicable in those states that have laws or regulations placing the burden upon the school district. Note that the burden of persuasion is not the same as the burden of going forward, which concerns which party goes first in presenting evidence.  To increase confusion, both the burden of persuasion and the burden of going forward are loosely referred to as "burden of proof" in legal circles.  (I'm not sure why!)

Concerning the IDEA due process hearing process, the Court in Weast noted that such hearings are deliberately informal.  The Court went on to note that the IDEA due process hearing was set up by Congress with the intention of giving the hearing officers the flexibility they need to ensure that each side can fairly present its evidence.

Monday, August 10, 2015

New Weekly Question!

The Kentucky handcuffing incident has reignited the debate about abuse of seclusion and restraints. What do you think should Congress pass a law requiring training and notification?

Friday, August 7, 2015

Keeping School Buildings Safe From Eight Year Old Disabled Kids! #really?

You may have heard the story about the Kenton County, Kentucky Deputy who is being sued by the parents of an 8 year old with ADHD.  The deputy allegedly handcuffed the disabled child.  Worse yet the allegation is that the handcuffs wouldn't fit because the boy's arms were so small causing the Deputy to handcuff the child's biceps instead.  Here is the video of the incident:

Now the Kenton County Sheriff has defended the Deputy saying that he did what he was sworn to do- keeping the school safe. Here is Washington Post article quoting the Sheriff.  Really? A tiny eight year old with a disability whose wrists are too small for handcuffs is a security threat?  I'd hate to  be the lawyer who had to make that argument to a jury!

This brings up the larger issue of seclusion and restraints. Early in 2009, a study was released by the Disability Rights Network chronicling grotesque and abusive misuse of restraint and seclusion for children with disabilities resulting in deaths or injuries. “School Is Not Supposed to Hurt: An Investigative Report on The Use of Seclusion and Restraint in Schools,”   A subsequent GAO study made similar horrific findings. In early February 2010, the Committee on Education and Labor of the House of Representatives approved a bill limiting the use of seclusion and restraints on students,the Keep All Children Safe Act,  Among other things, the bill limits the use of these techniques to cases of imminent danger; requires that staff using these techniques be properly trained; outlaws mechanical restraints; requires parental notification and establishes oversight mechanisms. Note that this is a new law not an amendment to IDEA.  Despite the fact that this bill would do many excellent things, Congress has not been able to pass it. {Insert your own lame Congress joke here} { Better yet call your Congressman and demand that this bill be passed!}

Seclusion and restraints is another hot button topic in special education law.  What are your thoughts?

Wednesday, August 5, 2015

CORRECTION: Twenty-two States Meet IDEA Requirements #whoops

A few week back we ran a post under the headline that only 19 states met the IDEA requirements. The Department of Education issues letters to state departments of education every year informing them whether they are in compliance with IDEA requirements.  As an alert reader pointed out, however, I miscounted the number of states meeting requirements for Part B (ages 3 to 21). The correct number of states in compliance is actually 22 and not 19.  I regret any inconvenience this may have caused.

Twenty- two states in compliance is better, yet way less than half meeting IDEA's basic requirements is still flat out sad.  You can read the previous article here.

Here are the results of the states in and out of compliance. How is your state doing? :

 MEETS REQUIREMENTS Connecticut, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, Oklahoma, Pennsylvania, Republic of Palau, Republic of the Marshall Islands, Rhode Island, Vermont, Virginia, Wisconsin, Wyoming 

 NEEDS ASSISTANCE (one year) Delaware, Federated States of Micronesia, Georgia, Ohio, Virgin Islands 

 NEEDS ASSISTANCE (two or more consecutive years) Alabama, Alaska, American Samoa, Arkansas, Arizona, California, Colorado, Commonwealth of the Northern Mariana Islands, Florida, Guam, Hawaii, Idaho, Illinois, Louisiana, Maine, Michigan, Mississippi, Montana, Nevada, New Mexico, New York, North Carolina, North Dakota, Oregon, Puerto Rico, South Carolina, South Dakota, Tennessee, Utah, Washington, West Virginia 

 NEEDS INTERVENTION (two consecutive years) Texas 

 NEEDS INTERVENTION (four consecutive years) Bureau of Indian Education 

 NEEDS INTERVENTION (nine consecutive years) District of Columbia 

Monday, August 3, 2015

Weekly Question!

As we run our: an Introduction To Special Education Law, what do you think are the easiest ways for a school district or its staff to get into special ed legal trouble?