Pennsylvania Education Law Lawyer & Attorney : Fox Rothschild Law Firm : Education Statutory and Regulatory Changes

On Tuesday, May 13, 2008, the U.S. Department of Education published proposed changes http://edocket.access.gpo.gov/2008/pdf/E8-10522.pdf to its special education regulations.  The Department seeks public comment on the proposed changes.  Details on how to submit comments are included with the announcement.

Among the proposed changes are new provisions to give a parent the right to unilaterally exit a child from special education.  The LEA would have no option or recourse, such as a due process hearing, to override the parent's decision. 

The Department also proposes to clarify its long-standing position on non-attorney representation at due process hearings.  The proposed changes state that whether parents can be represented by a non-attorney advocate would be determined by state law. 

Other proposed changes include amendments to subgrant funding processes, and state and local efforts regarding employment of highly qualified staff. 

The deadline to submit comments is July 28, 2008.

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A few months ago and few times, I wrote about a “problematic” placement decision by the Fourth Circuit in a case coming from Virginia (here, here, and here). Since then, there is more information to provide about the legal issues as well as a comment that is curious.

The school sought review in the U.S. Supreme Court. The National School Boards Association (“NSBA”) and others supported the petition seeking review. See the NSBA brief here.  The Supreme Court denied review.  The NSBA position was the same as my previous entry yet with even more legal support, including review of agency interpretations that “location” means the type of in-school setting where provision of the special education and related services will occur, such as a resource room. “Location” does not mean a particular school.

Finally, the comment. The commenter took objection to my observation that “[t]he best solution to problematic law, as always, is to create and maintain a healthy and cooperative relationship with student families.” Commenter wrote “[i]nteresting. So instead of complying with the court's ruling, you advocate that school districts talk nice to the parents and pull the wool over their eyes. I don't think that's good advice.”  Never did I suggest non-compliance and little do I think that healthy and cooperative relationships are based on the deception and misrepresentations that the commenter suggests.

The cases are replete with admonitions that IEP development is to be a cooperative process. The IDEA requires transparency, at least from the school, through things like prior written notice, procedural safeguards, access to records and the like. In the very case in question, the facts established that parents actually decided before hand that A.K. would attend their selected school only, while the IEP Team discussed the two schools under consideration, that parents knew the two schools proposed, and that the school's fault was simply not listing the two schools that were discussed within the document. 

I sit on both sides at the IEP Team table. For what it is worth, I believe open and honest communication does as much or more than mere technical compliance. After all, technical, legal compliance does not always equal moral compliance.  When dealing with our kids, I would like to think, and work for, improving our collective abilities.

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In a December 26, 2007 "Dear Colleague" letter, the U.S. Department of Education addressed "an issue involving students with disabilities seeking enrollment in challenging academic programs, such as Advanced Placement and International Baccalaureate classes or programs (accelerated programs)."  The letter would be applicable to any covered entity.

Apparently, some schools refuse to allow qualified disabled students the right to participate in such programs or require the student’s to forego some other right. These actions, said the Department, "are inconsistent with Federal law, and the Office for Civil Rights (OCR) in the U.S. Department of Education will continue to act promptly to remedy such violations where they occur."

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Two previous entries (here and here) addressed a problematic decision from the Fourth Circuit  arising out of Virginia.  The school district sought further review by the U.S. Supreme Court.  Recently, the U.S. Supreme Court denied further review.  The decision is now final, but not the ramifications.

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Bold prediction: special education disputes will lead to more litigation. Perhaps it is not so bold, after all. But if Pennsylvania finalizes the proposed changes to Chapter 14 of the Education Regulations and removes the second level of administrative hearing appeal, I believe the legal practice will undergo some significant changes.

Delving into some generalizations, the second level appellate review has been viewed as a low cost second chance. Most cases (but not all) proceed to that level. But, I think, most cases stopped after two runs through administrative review. This is especially so if both levels of administrative review yielded the same essential result. Most courts, we tend to think, would not want to second-guess two levels of administrative review.  In playing for the best-out-of-three, if the hearing officer and the appeal panel came to quite different results, the case is more likely to get to court.  And, finally, in those cases offering very mixed relief after two reviews, the parties seem to realize they are better off taking matters in to their own hands and settling the claims.

While lawyers on both sides may have their gripes about the appeal panels, the process probably, perhaps in a perverse way, resulted in less cases going to court. So what might happen without that second level of review?

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On December 29, 2007, the President signed into law the Medicare, Medicaid, and SCHIP Extension Act of 2007 (P.L. No. 110-173).  According to the Congressional Research Service Summary the law

[p]rohibits the Secretary of Health and Human Services from taking any action before June 30, 2008, to impose any restrictions relating to Medicaid coverage or payment for rehabilitation services or school-based administration and school-based transportation, if such restrictions are more restrictive in any aspect than those applied to such areas as of July 1, 2007.

So at least for the remainder of the 2007-08 school year, the current reimbursement process and funding remains in place.

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Today the Centers for Medicare and Medicaid Services ("CMS") published its final rule eliminating certain reimbursement to public schools.  The rule takes away reimbursement to schools providing transportation and administrative services to Medicaid eligible children with disabilities.  The final rule takes effect on February 28, 2008. 

I previously commented on the proposed rule change here and here.

The CMS received 1,240 public comments regarding the rule change, but found it should adopt the rule without any change.   Those comments, and CMS's response to them, reinforce what I previously said: that federal funding for special needs children needs to be rationalized.  The CMS response to comments demonstrate the lack of ultimate responsibility when federal funding is viewed as an agency-limited activity rather than a national need.

The CMS writes, "[t]he need for schools to obtain additional funding in itself does not justify continued Federal Medicaid reimbursement."  This and similar responses to comments shows that each agency will rightly limit itself to its statutory authority (we can question, of course, its interpretation of that statue).   The comments highlighting the federal failure to live up to its promised 40 percent special education funding, and the CMS responses, show that only Congress, which makes the promise and is authorized to allocate the money, is the only responsible party for this funding mess.

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Previously, I commented on the a problematic placement decision from the U.S. Fourth Circuit Court of Appeals, A.K. v. Alexandria City School Board.  In that case, the appeals court majority really got it wrong on a technical, but important, meaning about the "location" of a special education placement.

The school district has since filed for review by the Supreme Court.  Alexandria City Sch. Bd. v. A.K., No. 07-541.  The National Boards Association has filed a brief supporting such review and seeking permission to participate in the case. 

The Supreme Court is not likely to grant review.  But it should.  Well, only if it would fix the problem.

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The National School Boards Association ("NSBA") has been in front of this issue and doing its best to change the impact of the U.S. Department of Health and Human Services' ("HHS") efforts to effectively cut special education funding.  I reported on the new proposed HHS rule in the September 10, 2007 entry.  More information about the proposed cuts and NSBA's efforts can be found in the August 2007 Legal Clips.  An index and links to many NSBA documents produced in its advocacy against the change is found in the Advocacy and Legislation section of the website.

I believe the issue of special education funding - and the lack of it - is of great concern to both parents and schools.  Hopefully, together parents and schools will fend off any rule change that in effect cuts financial support for our special children.

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On Friday, September 7, 2007 the federal Department of Health and Human Services (“HHS”) announced its proposed rule change to eliminate Medicaid reimbursement to schools providing certain administrative services and transportation.  The proposal is lengthy, but as the summary states:

under the proposed rule, Federal Medicaid payments would no longer be available for administrative activities performed by school employees or contractors, or anyone under the control of a public or private educational institution, and transportation from home to school and back for school-aged children with an Individualized Education Program (IEP) or an Individualized Family Services Plan (IFSP) established pursuant to the Individuals with Disabilities Education Act (IDEA).

The proposal rule would not affect federal reimbursement for direct medical services such as speech and physical therapy. 

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“Location” and “educational placement (or setting):” in special education, what does each mean? Location in an IEP is commonly taken to mean the place where a service occurs, such as “learning support classroom” or “counselor’s office,” within a physical setting. Educational placement is an pedagogic term of art for a program service, such as “learning support,” “emotional support,” “Approved Private School,” and “autistic support.”  The public agency usually selects the location, while the IEP Team decides the placement.

Except for a dissenting opinion that understands the distinction, the Fourth Circuit’s decision in A.K. v. Alexandria City School Board, slip op. C.A. 06-1130, 484 F.3d 672, 2007 WL 1218204 (4th Cir.), conflates the concepts.  The majority ruled the school district did not provide FAPE because the IEP identified “Level II--Private Day School placement” rather than a specific private school. 

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In Saturday’s Federal Register, the U.S. Department of Education published its quarterly listing of letters and other documents of interest regarding Department interpretations of the Individuals With Disabilities Education Act. The letters are from January through March, 2007. The letters should be available at this part of the Department’s website, although at the moment the site is current only through 2006.

Included in the list is a letter addressing criteria to determine whether a speech and language impairment adversely affects a child's educational performance as well as how a school may respond when speech sessions are missed because of student or provider absence, and an explanation of the requirements governing the continuum of alternative placements. All in one letter. 

Other issues addressed include Medicaid reimbursement; child find for students enrolled in private schools; evaluation for specific learning disability; Part C to Part B transition; and parental consent.

Hopefully, the letters will be available freely on the web soon as there seems a wide-range of interesting issues covered. If anyone has a link to current public domain web documents, please provide it.

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