Monday, February 27, 2017

Weekly Question!

We recently ran a post asking whether special education is in danger. What do you think? #IDEA #POTUS

Thursday, February 23, 2017

New Supreme Court Special Education Decision Has Flawed Reasoning #scotus #exhaustion

Yesterday, the U. S. Supreme Court ruled in Fry v Napoleon Community Schools Docket No. 15-497, 580 U. S. ____ (2017). The decision by Justice Kagan was unanimous 8-0, although two justices issued a separate concurring decision. How about that special education, bringing people together! Yay!

I cannot believe that I am about to provide an argument below that the reasoning of the court is flawed! The facts are as follows:  The student in this case has a severe form of cerebral palsy that significantly limits her motor skills and mobility. Her parents obtained a service dog, a goldendoodle named Wonder who aids the student by retrieving dropped items, helping her balance on her walker, opening and closing doors, turning on and off lights, etc. The elementary school attended by the student refused to allow her to bring the service dog, claiming that her needs were met by the human aide provided by her IEP. (I love service dogs!)(Photo below by Amy Howe of the SCOTUS blog.)

The parents removed the student from school and began homeschooling her. After an OCR complaint, the elementary school offered to allow the dog to attend with the student, but the parents felt that the principal would resent the student and make her return difficult, so the student was enrolled in a different public school in a different district. (NB because the case was originally decided on a motion to dismiss all facts plead in the parents complaint were accepted as true.)

The parents then filed suit in federal court alleging violations of the Americans with Disabilities Act and §504 of the Rehabilitation Act. The district court granted the school district's motion to dismiss holding that exhaustion of administrative remedies require the parents to first have a due process hearing before an IDEA hearing officer. The Sixth Circuit Court of Appeals agreed with the District Court. The Supremes granted certiorari.  

The Supreme Court's holding has two parts. First it ruled that exhaustion of IDEA hearing procedures is only required where parents seek relief for a denial of a free and appropriate public education. Second it held that courts must look to the gravamen of a complaint to determine whether it seeks such relief.

The reasoning of the court really troubles me. The basis for the ruling is the court's conclusion that the only relief that a hearing officer can give is relief for a denial of FAPE. Apparently the parties stipulated to this fact, but unfortunately it is wrong.  The court's standard is fine for the 85%+ of IDEA cases that involve a denial of FAPE, but how about the other cases? There are four specific areas that can give rise to a due process complaint for an IDEA violation. Denial of  FAPE is one of the four areas; the others are evaluation, identification (including child find and eligibility) and placement (including allegations of least restrictive placement violations, disciplinary changes of placement, etc). IDEA §615(b)(6)(A); 34 CFR § 300.507(a)(1). What about those cases? Does this opinion authorize parents who are alleging an LRE violation or a child find violation or an independent educational evaluation at public expense the right to go directly to court without first exhausting administrative remedies because the gravamen of their complaint is not a denial of FAPE? Will parent lawyers test this new ruling by avoiding FAPE but challenging the other three categories of IDEA violations? I cannot believe that this is the result the high court is anticipating.

The court's confusion, as well as the parties, seems to stem from the changes made to IDEA in 2004 concerning procedural violations. Specifically, the Act was amended to include a provision that procedural violations only constitute a denial of FAPE where there was something more, like an adverse effect on the student's education or a substantial impeding of the parent's participation rights. IDEA § 615(f)(3)(E). The section also includes a requirement that the decision of a hearing officer be based upon substantive grounds. The Office of Special Education Programs, specifically because of these considerations, wrote the federal regulation to clarify that only a hearing officer's decision concerning whether FAPE was provided must be on substantive grounds. 34 C.F.R. §300.513(a). In an attempt to allay fears that the provision might limit hearing officers to ruling ony on FAPE issues, OSEP in its analysis of comments to the proposed federal regulations specifically stated that despite this new provision in IDEA "...(h)earing officers continue to have the discretion to dismiss complaints and make rulings  on matters in addition to those concerning the provision of FAPE, such as the other matters mentioned in §300.507(a)(1)." 71 Fed. Register No. 156 at page 46707 (OSEP August 14, 2016). The other matters in the quoted regulation are placement, identification and evaluation. 

OK so the basis for the court's holding is wrong! I find myself in the awkward position of disagreeing with counsel for the parties, and all eight justices. I am out on a limb, but I believe that this decision causes more problems than it solves!

From there the high court provides guidance to lower courts in interpreting this test. The Supreme Court ruled that the lower courts must look at the substance or gravamen of the complaint- to prevent parties from avoiding the exhaustion requirement by artful pleading. 

The court then suggests some specific questions for lower courts to consider. This is where the concurring justices (Alito and Thomas) get off; they find the suggested questions which begin on page 15 to be not so good.  The six justice opinion offers three questions. First could a plaintiff have brought essentially the same claim for a public facility that is not a school- a theater or library for example. Second could an adult at the school- an employee or visitor for example-  have brought essentially the same grievance? If the answer to these questions is yes, exhaustion would not be required because the gravamen of the complaint would not be a FAPE case. Another line of inquiry for lower courts suggested by the high court  involves the parent's prior history with IDEA proceedings. A plaintiff that began seeking relief in a due process hearing may possibly be after relief for a denial of FAPE.

One issue that the Supreme Court specifically did not reach was whether exhaustion of IDEA remedies is required where the plaintiff complains of a denial of FAPE, but seeks a remedy that an IDEA hearing officer cannot give such as money damages. Because the parents argued that their complaint was not about a denial of FAPE, the Court specifically ducked the issue as unnecessary to the resolution of this case. See footnotes 4 and 8, and the surrounding text. So this decision does not provide guidance in that situation.

So there you have it- a special education decision by the Supreme Court. You can read the opinion and the concurring opinion here. What do you think? What are the implications for the application of IDEA exhaustion to §504, ADA and other causes of action? Do the lower courts have clear guidance?

Wednesday, February 22, 2017

Breaking: Supreme Court Rules Exhaustion Only Required Where FAPE Is In Issue #scotus #exhaustion

The United States Supreme Court Ruled today in Fry v Napoleon Community Schools that IDEA exhaustion is required only when IDEA FAPE is at issue. This decision reverses the Sixth Circuit decision that held that a parent must exhaust IDEA remedies before pursuing a §504 action for the failure of a school district to allow a student with a disability to have a service dog.

Get this the decision was 8-0, with six justices joining Justice Kagan's majority opinion and two others concurring.

You can read the entire decision and concurrence here. More to come on this unanimous special ed decision.

Tuesday, February 21, 2017

Almost Famous: My Outline Quoted to U. S. Supreme Court #scotus #gerl

Part of my job involves training hearing officers, mediators, complaint investigators, lawyers and other special education staff. I really enjoy this work. Many of those who read this blog have been involved in these trainings and have seen my outlines, the written materials that I prepare for participants in these presentations.

As you know from our previous posts here, here and here, one of two special education cases pending before the U. S. Supreme Court is Fry v Napoleon Community Schools, a case involving exhaustion of administrative remedies. 

When a case is argued before the Supreme Court, various groups request leave to file friend of the court, or amicus, briefs stating their positions. Well in the Fry case, the NSBA, NASDSE, AASA and others filed an amicus brief, and the brief cites me and one of my outlines concerning the duty and power of a hearing officer to make a complete record.  (Interesting aside- my spell check wants to change "amicus" to amigos! Too many punchlines...must stop!)

You can read the amicus brief here. Check out footnote 18 on page 24 for the reference to my outline and the complete record discussion. 

I am once again almost famous! Can the big time be far away?

Monday, February 20, 2017

Weekly Question!

We recently ran a post asking whether special education is in danger. What do you think? #IDEA #POTUS

Tuesday, February 14, 2017

Is Special Education In Trouble? #IDEA #special education #POTUS

OK it is time for a serious question, is special education in trouble? This blog is not partisan; we do not endorse candidates or tell you how to vote. Indeed, I take great comfort in the fact that historically, special education has received widespread and solid support from both political parties. My intention here is not to get political, yet there may well be cause for concern by recent political developments.

I began to worry when Donald Trump, a candidate for the highest office in the land, mocked a reporter with a disability on national television. You can see it in the video below

When I saw this on television, I felt sick.  If you read this blog regularly, you know that bullying of children with disabilities is a big problem in this country. We have done many posts on this topic. What sort of signal does it send to children when one of out leaders bullies a person with a disability? Will this encourage others to do so?

OK so the backdrop is extremely disturbing. Recently Disability Scoop reported that references to disabilities disappeared from the White House website after the new administration took over. Also a very bad sign. Another recent development was the disappearance of the idea website - a site developed for special ed stakeholders to find information. The site is again active, but it has been replaced by a referral to the generic OSEP website. More bad signs?

So what are the President's views on special education?  During the general election campaign, I emailed both the Trump and Clinton campaigns concerning their views on special education. Neither responded. So I am not sure what the President's views are concerning special education. 

I then looked at the people whom he announced that he had selected for his cabinet. His pick for secretary of Education is Betsy DeVos. She has been a champion of vouchers for parents to send children to private schools. The Council for Exceptional Children have questioned the policy wisdom of vouchers.  Her testimony during her confirmation hearing seemed to indicate that she was not familiar with IDEA, the special education law, and she thought that IDEA compliance should be up to the states.  The Secretary of Education has responsibilities that relate directly to the enforcement of the special education law and regulations. So some a lot more red flags have been raised, but I still don't know what she thinks about special education..

Then there is the new Attorney General, Jeff Sessions. Although the AG does not directly enforce the special education laws, his department does have enforcement responsibilities for the Americans with Disabilities Act which does have some requirements for school children with disabilities. Also the Solicitor General who works for the AG argues the administration's position on certain special education cases that come before the Supreme Court. So the AG can play an important role in this field.

But Jeff Sessions, the incoming AG is not a fan of special education. In a speech he gave on the floor of the Senate in 2000, he attacked the Individuals With Disabilities in Education Act, known as IDEA, saying, “In fact, it may be the single most irritating problem for teachers throughout America today,” He blamed IDEA for the lack of civility in our country. He said in part:
"We have created a complex system of federal regulations and  laws that have created lawsuit after lawsuit, special treatment for certain children, and that are a big factor in accelerating the decline in civility and discipline in classrooms all over America. I say that very sincerely." (emphasis added.)
Later he stated
               "There is no telling how many instructional hours are lost by teachers in dealing with behavior problems. In times of an increasingly competitive global society it is no wonder American students fall short. Certain children are allowed to remain in the classroom robbing the other children of hours that can never be replaced...
            It is even more frustrating when it is a special education child who knows and boasts “they can’t do anything to me” and he is placed back in the classroom to disrupt it day after day, week after week.
            It is clear that IDEA ’97 not only undermines the educational process it also undermines the authority of educators. In a time when our profession is being called upon to protect our children from increasingly dangerous sources our credibility is being stripped from us.
         I am sure you have heard the saying: The teachers are scared of the principals, the principals are scared of the superintendents, the superintendents are scared of the parents, the parents are scared of the children, and the children are scared of no one. And why should they be?
         I have experienced the ramifications of the 'new and improved' law firsthand. I had one child attempt to assault me — he had been successful with two other teachers. He was suspended for one day. I had another child make sexual gestures to me in front of the entire class. Despite the fact that every child in my class and a majority of the children in the school knew of it, I was told by my assistant principal that nothing could be done because 'these special ed kids have rights.' " (emphasis added.)

Yikes. You can read Mr. Sessions entire speech here. Lotsa stuff going on, no?

OK so what is your opinion- is special education in trouble? Tell us what you think: am I overreacting or is it possible that special ed will become a thing of the past? Is it time to call your congressional representatives?

Monday, February 13, 2017

Weekly Question!

We are running a Series on Procedural Safeguards. Which of the procedural safeguards under IDEA are most effective in protecting the educational rights of children with disabilities? #SpEdProcedures

Tuesday, February 7, 2017

Procedural Safeguards - The Series Part XII #procedural violations

This is the thirteenth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that you find the information in this series helpful. Be sure to tell me what you think.

Procedural Violations

Section 615 (f)(3)(E) provides that the decision of the hearing officer must be on substantive grounds. Moreover, this section also provides that in matters alleging a procedural violation, a hearing officer may only find a denial of FAPE if the procedural inadequacies impede FAPE; or significantly impede the parents’ opportunity to participate; or cause a deprivation of educational benefits. Many courts had already read the old IDEA to the same effect. For example, see, D. L. ex. rel. J. L. v. Unified Sch. Dist. 42 IDELR 139 (Tenth Cir. 2004); M. L. v. Federal Way Sch. Dist. 39 IDELR 236 (Ninth Cir. 2003); and Gadsby v. Grasmick 25 IDELR 621 (Fourth Cir. 1997). These rulings are now codified in the statute.

During the hearing in cases alleging a procedural violation, the hearing officer has to carefully rule on evidentiary objections to ensure that evidence connecting the procedural violation to one of the specified grounds is forthcoming. In cases in which a party is not represented by counsel, the matter is complicated by the hearing officer’s duty to make a complete record. In such cases, the hearing officer will likely ask a number of questions of the unrepresented party to determine the result of the alleged procedural violations or the effect of said procedural violations upon FAPE, the opportunity of the parents to participate in the process, or the deprivation of educational benefit.

OSEP has clarified that the requirement that a hearing officer base his decision on substantive grounds applies only to cases alleging denial of FAPE; a hearing officer still has jurisdiction over LRE cases and other matters alleging issues involving identification, evaluation and placement. 71 Fed. Register No. 156 at pages 46705-06 (August 14, 2006). The new amendment does not affect these types of cases. 

Monday, February 6, 2017

Weekly Question!

We are running a Series on Procedural Safeguards. Which of the procedural safeguards under IDEA are most effective in protecting the educational rights of children with disabilities? #SpEdProcedures

Thursday, February 2, 2017

Procedural Safeguards - The Series Part XII #due process hearing #dph

This is the twelfth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.

Due Process Hearings

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). 

Hearing Officers must be well trained. 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).

Representation by Non-Attorneys in Due Process Hearings
Changes to the federal IDEA regulations effective on December 31, 2008 made an important change to the policy interpretation by OSEP regarding the representation of parties (primarily parents) by non-lawyers in due process hearings. Prior to the change, it had been the long-standing interpretation of OSEP that a non-lawyer could represent parents at a due process hearing in much the same way that a lawyer could represent a party. After certain lower courts declared such a practice to be a violation of “unauthorized practice” statutes, OSEP changed 34 C.F.R. Section 300.512 (a)(1) to specify that whether a party has the right to be represented by a non-lawyer at a due process hearing shall be determined by state law.  Some commenters, including this author, asked OSEP to clarify whether it was sufficient for a state by rule or regulation to specify that parties could be represented by non-lawyers or whether the ability of a lay advocate to represent parents is instead controlled by state law regarding the unauthorized practice of law. OSEP’s “response” was as follows:  Discussion: Whether an SEA may have a State regulation or procedural rule permitting non-attorney advocates to represent parties at due process hearings or whether that issue is controlled by State attorney practice laws is determined by State law. If State law is silent on the question of whether non-attorney advocates can represent parties in due process hearings, there is no prohibition under the Act or its implementing regulations on nonattorney advocates assuming a representational role in due process hearings. 73 Fed Register No. 231 at page 73018 (12/1/2008)

 Here is the OSEP Questions and Answers On Procedural Safeguards and Due Process Procedures For Parents and Children With Disabilities. See also,  Memo to Chief Sch Officers Re Dispute Resolution Procedures Under Part B of IDEA 61 IDELR. 232 (OSEP 7/23/13) (Q and A document with a section on due process hearings.)