Saturday, May 30, 2015

Breaking: More Fun With Numbers - NCES Releases "The Condition Of Education 2015" #EdData

The National Center for Education Statistics of the United States Department of Education has released "The Condition of Education 2015." The report has a wealth of information that should be useful to everybody involved in the field of education. Although the data includes many topics other than special education, the IDEA numbers are always interesting.

Here are some of the special education highlights:

"From school years 1990–91 through 2004–05, the number of children and youth ages 3–21 who received special education services increased, as did the percentage of total public school enrollment they constituted: 4.7 million children and youth ages 3–21, or about 11 percent of public school enrollment, received special education services in 1990–91, compared with 6.7 million, or about 14 percent, in 2004–05. Both the number and percentage of children and youth served under IDEA declined from 2004–05 through 2011–12, with some evidence of leveling off in 2012–13. By 2012–13, the number of children and youth receiving services under IDEA had declined to 6.4 million, corresponding to 13 percent of total public school enrollment." (emphasis added)

"... In 2012–13, some 35 percent of all children and youth receiving special education services had specific learning disabilities, 21 percent had speech or language impairments, and 12 percent had other health impairments (including having limited strength, vitality, or alertness due to chronic or acute health problems such as a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, or diabetes). Children and youth with autism, intellectual disabilities, developmental delays, or emotional disturbances each accounted for between 6 and 8 percent of students served under IDEA. Children and youth with multiple disabilities, hearing impairments, orthopedic impairments, visual impairments, traumatic brain injuries, or deaf-blindness each accounted for 2 percent or less of those served under IDEA."

"About 95 percent of school-age children and youth ages 6–21 who were served under IDEA in 2012–13 were enrolled in regular schools. Some 3 percent of children and youth ages 6–21 who were served under IDEA were enrolled in separate schools (public or private) for students with disabilities; 1 percent were placed by their parents in regular private schools; and less than 1 percent each were in separate residential facilities (public or private), homebound or in hospitals, or in correctional facilities. Among all children and youth ages 6–21 who were served under IDEA, the percentage who spent most of the school day (i.e., 80 percent or more of time) in general classes in regular schools increased from 33 percent in 1990–91 to 61 percent in 2012–13. In contrast, during the same period, the percentage of those who spent 40 to 79 percent of the school day in general classes declined from 36 to 20 percent, and the percentage of those who spent less than 40 percent of time inside general classes also declined from 25 to 14 percent. In 2012–13, the percentage of students served under IDEA who spent most of the school day in general classes was highest for students with speech or language impairments (87 percent). Approximately two-thirds of students with specific learning disabilities (67 percent), students with visual impairments (64 percent), students with other health impairments (64 percent), and students with developmental delays (62 percent) spent most of the school day in general classes. In contrast, 16 percent of students with intellectual disabilities and 13 percent of students with multiple disabilities spent most of the school day in general classes."

You may review the entire 320 page report here. An "at a glance" summary is available here. Some of the highlights of the report are available here.

Friday, May 29, 2015

Special Education Law 101 - Part VII #RelatedServices

This is another post in our current series introducing readers to special education law's key concepts.  Today's post is about related services. This phrase is almost always preceded by "special education and..."

Let me know if you are enjoying this series. For some it is an introduction.  For others it is a chance to brush up on the key concepts...

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, § 602(26).  See, 34 C.F.R. § 300.34.

              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

              In Marshall Joint Sch Dist No.2 v CD by Brian & Traci D 616 F. 3d 632, 54 IDELR 307 (7th Cir 8/2/10), the Seventh Circuit  concluded that the student did not need specialized instruction.  Any need for PT or OT, therefore, was not relevant.

Monday, May 25, 2015

Weekly Question!

We are now running a new series which is an updated version of our previous series: An Introduction To Special Education Law. Are there any topics that we have not covered in the past that you would like to see in this Special Ed Law 101 Series? Are you enjoying the series?

Wednesday, May 20, 2015

Breaking: Supreme Court Declines To Review Special Education Stay Put Decision #scotus

There are only ten decisions on special education law by the U S Supreme Court, so it was a big deal last October when the high court requested briefs on a stay put appeal from the Justice Department. Our post on the topic may be found here.  The brief filed by the Justice Department agreed with the interpretation of stay put rendered by the Third Circuit. You may read the Justice Department's brief here.

Unfortunately, on Monday of this week, the Supremes denied certiorari in the case of  Ridley Sch Dist v MR by Parents, Docket No. 13-1547  By declining to consider the decision, the high court lets the ruling stand. See the SCOTUS Order here.  Here is a helpful article in Education Week.

The controversy involved the stay put provision:
 IDEA § 615 (j) provides that (except in certain discipline cases), during the pendency of any due process or court proceedings pursuant to this section, unless the parties agree otherwise, the student ‘…shall remain in the then-current educational placement of the child…”  This is commonly referred to as the stay put provision.  The stay put placement is the last agreed upon IEP, unless the parties agree otherwise. See 34 C.F.R. § 300.518.

              The Supreme Court interpreted and endorsed the stay put decision in the case of Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 559 IDELR 231 (1988).  In that decision, the Supreme Court, noting the Congressional intent in preventing the exclusion of disabled students and reiterating the importance of the procedural safeguards under the IDEA, refused to read a dangerousness exception into the stay put provision.  Honig v. Doe, supra.  (NOTE; please note that IDEA’04  has added other provisions pertaining to danger/injury.)

Two circuits, DC and the Sixth, had held that once a District Court rules that FAPE is provided, the stay put protection, even if the child is in private school, ends. (The decision by the DC Circuit was very old and sparsely worded, however.)  So if the student is in private school, the school district no longer has to pay at that point.  Two circuits disagree, the Third and Ninth, holding that stay put applies until the case is concluded, so in our example the public school district would be on the hook for tuition at the private school until the end of the case. The Ridley decision was the Third Circuit's interpretation.


Monday, May 18, 2015

Weekly Question!

We are now running a new series which is an updated version of our previous series: An Introduction To Special Education Law. Are there any topics that we have not covered in the past that you would like to see in this Special Ed Law 101 Series? Are you enjoying the series?

Thursday, May 14, 2015

Special Education :aw 101 - Part VI #IEP

Our series providing an introduction to special education law continues.  Previous posts have introduced the two basic concepts underlying IDEA, free and appropriate education and least restrictive environment.  Last week we discussed eligibility and identification.  Today we will look at selected IEP issues.

The Individualized Educational Plan (hereafter sometimes referred to as “IEP”) is at the heart of the Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et seq (hereafter sometimes referred to as the “IDEA”.) In the seminal decision of in Board of Educ., Hendrick Hudson Central Sch. Dist. v. Rowley, 455 U.S. 175, 102 S.Ct. 3034, 3038, 553 IDELR 656 (1982), the U. S. Supreme Court noted that the function of the IEP is to tailor the free and appropriate education required by the IDEA to the unique needs of the student with a disability. 
In a subsequent decision, the Supreme Court referred to the IEP as the “primary vehicle for implementing” the congressional goals underlying the IDEA. Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 597, 559 IDELR 231 (1988).  The Supreme Court has also described the IEP as “the modus operandi of the Act,” requiring a “comprehensive statement of the needs” of a student with a disability and the “specially designed instruction and related services to be employed to meet those needs.”  Burlington Sch. Comm. v. Dept. of Educ. 471 U.S. 359, 105 S.Ct. 1996, 2002, 556 IDELR 389 (1985).
More recently, the Supreme Court called the IEP Team meeting process “the central vehicle” for collaboration in the cooperative process the Act establishes between parents and school districts. Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005).

Some IEP Issues

Issues pertaining to IEPS are among the most frequent to appear in due process hearings.  Here are some fundamental points:

Issues pertaining to individualized education programs are governed by IDEA §§ 612(a)(4) and 614 (d)-(f).  See, 34 C.F.R, §§ 300.320-300.323,  300.324 – 300.328.

D.F. & D.F. ex rel N.F. v. Ramapo Cent. Sch. Dist. 105 LRP 57524 (2d Cir. 11/23/05).  The Court notes that the case raises an issue as to whether it is proper to utilize prospective or retrospective analysis of an IEP.  The court stated that an IEP is a snapshot not a retrospective. In striving for appropriateness, an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, i.e., at the time the IEP was formulated.  Contrast,  MS by Simchick v. Fairfax County Sch Bd 553 F.3d 315, 51 IDELR 148 (4th Cir 1/14/09).
In a recent trend involving cases alleging failure to implement IEPs, courts have increasingly taken a stance that to be actionable, the failure to implement must have been "material." This trend follows the reasoning of the Ninth Circuit Court of Appeals in  Van Duyn ex rel Van Duyn v. Baker Sch Dist 5J 481 F.3d 770, 47 IDELR 182 (9th Cir. 4/3/7) 

Monday, May 11, 2015

Weekly Question!

We are now running a new series which is an updated version of our previous series: An Introduction To Special Education Law. Are there any topics that we have not covered in the past that you would like to see in this Special Ed Law 101 Series? Are you enjoying the series?

Saturday, May 9, 2015

Maintenance of Effort #MOE

Maintenance of Effort is one of those special ed law concepts that gives people conniptions. You know- for some people it is discipline of kids with disabilities; for others it's MOE.

The theory is that unless certain exceptions are applicable, a public agency cannot spend less on special education than last school year. The Department of Education recently adopted a final rule concerning MOE.  You can review the rule in the Federal Register here.

Here is a good description of the changes by our friend Professor Mark Weber that recently was published on the Education Law Professor Blog:

On Tuesday, April 28, the Department of Education issued a final rule covering maintenance of effort (sometimes called “nonsupplanting”) by school districts and other local education agencies in connection with Individuals with Disabilities Education Act funding. As is the case with many other federal programs, IDEA aims to supplement, not supplant, what states and localities would be doing on their own. Accordingly, LEAs are not permitted to reduce the level of expenditures from local funds below the level for the preceding fiscal year, except in specific circumstances, such as decreases in special education enrollment, the termination of services to a child with a particularly costly program, and the completion of construction or other expensive long-term projects. 
What is newsworthy is the adoption of a rule, 34 C.F.R. § 300.203(c), that makes clear that if an LEA fails to meet the maintenance of effort requirement in a given year, the following year it must maintain or exceed the expenditures of the last year in which it met the requirement, rather than the year in which it failed to make the needed level of expenditures. This new rule implements provisions of the Consolidated Appropriations Act, 2014 Pub. L. 113-76, 128 Stat. 5, 394, and Further Continuing Appropriations Act, 2015, Pub. L. 113-235, 128 Stat. 2130, 2499 with regard to recent federal appropriations. It is also consistent with Department of Education policy announced in Letter to Boundy, 58 IDELR 261 (2012), which withdrew contrary guidance contained in Letter to East, 57 IDELR 108 (2011).
 The new regulations also clarify the four ways in which the maintenance of effort requirement may be met (local funds only, combination of state and local funds, local funds on a per capita basis, state and local funds on a per capita basis). Though some may react to the changes by asking “What took you so long?” clarifying the general policy and placing into the Code of Federal Regulations the specific rule about maintaining the level of expenditure for the last year in which the LEA met the maintenance of effort requirement should increase school districts’ understanding of what they have to do and facilitate compliance. There is a helpful article on the new regulations in Disability Scoop.  My book, Special Education Law and Litigation Treatise, has a general discussion of the maintenance of effort requirement and the cases and Education Department guidance in connection with it, at § 18.5. 

Tuesday, May 5, 2015

Special Education Law 101 - Part V #Eligibility

Our series providing an introduction to special education law continues.  Previous posts have introduced the two basic concepts underlying IDEA, free and appropriate education and least restrictive environment.  Today's post concerns eligibility and identification.

Identification & Eligibility

Issues pertaining to identification and eligibility are governed by IDEA § 612(a)(3) and 614 (b)(4)-(6).  See, 34 C.F.R, § 300.121- 300.125, 300.300, 300.306, 300.307 – 300.311.  

In summary, to be eligible, a child must have one of the enumerated conditions(mental impairment, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities)(which adversely affects his education) and by reason thereof, he must need special education and related services.  In addition as a third requirement for eligibility, most of the disabling conditions require that the condition adversely affects the child's educational performance.

Some important circuit court decisions:

Marshall Joint Sch Dist No 2 v. CD by Brian & Traci D    616 F.3d 632, 54 IDELR 307 (7th Cir 8/2/10) Seventh Circuit reversed HO who found student eligible solely upon physician’s opinion that the student could benefit from adaptive PE.  The Seventh Circuit noted that a physician may not simply prescribe special education; IEPT must consider relevant factors.

Alvin Indep Sch Dist v. AD by Patricia F 503 F.3d 378, 48 IDELR 240 (5th Cir. 10/4/7)  The fifth Circuit affirmed a holding that despite a fifth grader’s ADHD, he was not eligible for  special education.  The student consistently received passing grades, he succeeded on statewide tests and he was achieving in social situations.  Accordingly, he did not by reason thereof “need special education and related services,” and, therefore, he was not a child with a disability as defined by the IDEA

Hood v. Encinitas Union Sch Dist 47 IDELR 213 (9th Cir. 4/9/7)  The Ninth Circuit applied the Rowley standard to an eligibility issue.  Where the student consistently received above average grades despite her disability, she received educational benefit, and therefore, was not eligible for SpEd.  NOTE:  One legal scholars has questioned whether theRowley test is too restrictive for eligibility purposes, Weber, Mark "The IDEA Eligibility Mess,"
IDEA also places a child find duty upon school districts.  A district has an affirmative duty to identify and evaluate children with disabilities.  District of Columbia Public Schs (JG) 111 LRP 25934 (SEA DC 3/18/11) The standard for child find is suspicion of a disability rather than actual knowledge. District of Columbia Public Schs (JG) 111 LRP 25934 (SEA DC 3/18/11).
Compton Unified Sch Dist v. Addison 598 F.3d 1181, 54 IDELR 71 (9th Cir. 3/22/10) By a 2-1 vote, Ninth Circuit rejected school district argument  that there is no child find duty because of language pertaining to prior written notice. The district argued that only an action or refusal is a violation. The Ninth Circuit held that a parent could file a dpc on any matter related to identification, evaluation, FAPE or placement, so, therefore, child find violations are actionable.  
Ridley Sch Dist v. MR & JR ex rel ER 680 F.3d 260, 58 IDELR 271 (3d Cir 3/19/12) Third circuit conducted a detailed review of the law concerning Child Find, and concluded that the HO erred by failing to allow the school district a reasonable time to identify the student as disabled.  

Monday, May 4, 2015

Weekly Question!

We are now running a new series which is an updated version of our previous series: An Introduction To Special Education Law. Are there any topics that we have not covered in the past that you would like to see in this Special Ed Law 101 Series? Are you enjoying the series?