Friday, June 30, 2017

Special Education Law 101 - Part VII #related services

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.

                In Doe ex rel Doe v East Lyme Bd of Educ 790 F.3d 440, 65 IDELR 255 (Second Cir 6/26/15) Parent argued that SD violated stay put by failing to provide the related services of speech therapy and OT. District court agreed but limited relief only to money that the parent had already paid out for the related services to avoid awarding money damages which are not available under IDEA. Second Circuit reversed holding that the parent was entitled to the full value of the related services provided for in the IEP not as money damages, but rather as a form of compensatory education. (Full value of services not yet paid for by the parent.)

Monday, June 26, 2017

Weekly Question!

Who won Endrew F? What do you think? #FAPE STANDARD #IDEA #SCOTUS

Wednesday, June 21, 2017

Special Education Law 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. Similar language is used by the high court in the recent Endrew F decision.
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).  Also, 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, June 19, 2017

Weekly Question!

Who won Endrew F? What do you think? #FAPE STANDARD #IDEA #SCOTUS

Wednesday, June 14, 2017

Breaking: Census Bureau Releases Report On Public School Finances #funding

The U S Census Bureau today released a report on how public schools in the United States are financed. It concludes that public schools across the nation spent over 60 percent of day-to-day expenditures on classroom instruction in fiscal year 2015.
The report contains  a wealth of data pertaining to school finance, including numbers regarding how much is spent on special education. 
The 65 page report Public Education Finances: 2015 is available here.
Here are some highlights:

“School systems in all states and the District of Columbia spent $344.3 billion on classroom instruction,” said Stephen Wheeler, a project manager with the Census Bureau’s Educational Finance Branch. “This includes spending on salaries for teachers, instructional aides and substitute teachers.”
Classroom instruction is defined as activities dealing with the interaction between teachers and students in the classroom or other learning situations.
New York and the District of Columbia led the nation in total per student spending on instructional staff salaries at $8,758 and $9,112, respectively.
Per Student Spending
Nationally, per student spending was $11,392 in fiscal year 2015, a 3.5 percent increase from fiscal year 2014. This amount represents the largest increase in per student spending since 2008 when there was a 6.1 percent increase from the year prior. Total current expenditures per student include instruction, support services and noninstructional functions, including direct expenditure for salaries, employee benefits, student transportation, building maintenance and other services and supplies.
Per student spending increased for every state, with Alaska and California having the highest percentage increase (9.5 percent and 9.1 percent, respectively), except for Arizona (decreased 0.5 percent).
Overall, New York and Alaska spent more per student with a total of $21,206 and $20,172, respectively. States with the lowest per student expenditures were Idaho with $6,923 and Utah with $6,575.
Of the 100 largest school systems by enrollment, Maryland had four of the 10 public school districts with the highest spending per student. This marks the eighth year in a row Maryland has had four school districts in the top 10 in this category. Nationally, the top five school districts per student spending were New York City School District at $21,980; Boston City Schools at $21,552; Anchorage School District in Alaska at $17,046; Baltimore City Schools in Maryland at $15,818; and Howard County Schools in Maryland at $15,714.
Public Education Expenditure
Total expenditure by public school systems was $639.5 billion in fiscal year 2015, compared to $613.7 billion in fiscal year 2014. Of the total expenditures for elementary and secondary education, current spending made up $567.7 billion, or 88.8 percent, and capital outlay was $52.1 billion, or 8.2 percent.
Expenditures for instruction amounted to $344.3 billion, or 60.6 percent of total current spending. Instructional salaries and wages totaled $216.9 billion, while instructional employee benefits totaled $87.1 billion.
Support services expenditures included general and school administration expenditures at $40.9 billion, operation and maintenance of plant expenditures at $51.6 billion and student transportation expenditures at $24.2 billion.
Eight of the nine states in the Northeast ranked among the top 15 in spending per student, except for Maine, which was 16th. Out of the 20 states with the lowest per student spending, 17 were in the South or West. The remaining states were Kansas, Indiana and South Dakota, which are in the Midwest.
Total school district debt increased by 3.6 percent from the prior year, from $418.0 billion in fiscal year 2014 to $433.1 billion in fiscal year 2015.
Public Education Revenue
State governments contribute the greatest share of public school system funding at $302.6 billion, or 47.1 percent of total revenue.
Revenue raised from local sources, which includes revenues from county and municipal governments, amounted to $286.7 billion, or 44.6 percent of public elementary and secondary funding, while the federal government contributed $53.3 billion, or 8.3 percent of public elementary and secondary funding.
The $286.7 billion that schools received from local sources included $196.6 billion from property and other taxes.
Public school systems receiving the highest percentage of revenues from the federal government were Louisiana and Mississippi with 14.7 percent, South Dakota with 14.6 percent, Arizona with 13.4 percent and New Mexico with 13.2 percent.
Public school systems receiving the lowest percentage of revenues from the federal government were Connecticut and New Jersey with 4.1 percent, New York with 4.5 percent and Massachusetts with 4.6 percent.

Tuesday, June 13, 2017

Special Education Law 101 - Part V #eligibility #identification

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 scholar has questioned whether theRowley test is too restrictive for eligibility purposes, Weber, Mark "The IDEA Eligibility Mess,"
CJ by Hudson v Pittsburg Unified Sch Dist 835 F.3d 1168, 68 IDELR 121 (9th Cir 9/5/16) Ninth Circuit held that SD erred by ruling that student was no longer eligible for special ed services where his educational progress was a result of the specialized services that he received including mental health services, a 1:1 behavioral aide and other accommodations. Fact that he received services in general ed setting did not change result; 
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, June 12, 2017

Weekly Question!

Who won Endrew F? What do you think? #FAPE STANDARD #IDEA #SCOTUS

Wednesday, June 7, 2017

Kimberly Richey Named Assistant Secretary of Education for OSERS #OSERS

Secretary of Education Betsy DeVoss has announced the appointment of Kimberly Richey as Assistant Secretary for Special Education and Rehabilitative Services. The press release is available here.

According to the Council for Exceptional ChildrenRichey is currently the interim chief advocacy officer at the National School Board Association (NSBA). She is an attorney who specializes in education law and previously served as Counsel of the Oklahoma State Department of Education, according to her bio on the NSBA site.

Your thoughts?

Monday, June 5, 2017

Weekly Question!

Who won Endrew F? What do you think? #FAPE STANDARD #IDEA #SCOTUS

Friday, June 2, 2017

Breaking: Is Back

Remember the very useful website that OSEP had developed with tons of resources for parents and other education stakeholders. We previously reported here that the website had mysteriously disappeared.

Well it's back... You can find it here. An additional website about IDEA is available here.

The website was lost...and now it's found.