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

A recent study looked at students held back a year from kindergarten to third grade and concluded the schools are not properly identifying held back students as in need of special education.  Forbes on line reported on the matter ("Special Education Services Lacking for Kids Who Repeat a Grade").

The study found that 12.9 percent of the students had on IEP during the held-back year and that 18.2 percent received an IEP within five years of being held back.  To me, the study seems possibly flawed.  The study seems to operate with a presumption that a held-back student must be in need of special education, yet the reasons for holding back are many and varied. 

Moreover, the apparent presumption goes completely against the IDEA of 2004's effort to keep students out of special education through the use of Early Intervening Services (different than Early Intervention).

But like so much about special education, statistics reveal little.  These percentages not only do not tell us the reasons for holding back a particular child, the numbers say nothing of what efforts were made for each particular student.  More informative might be the percentage of students evaluated for special education eligibility, the numbers involved in non-special education intervention programs, like Title I or a hybrid classroom that many schools offer for students needing more development time. 

Ultimately, the real question, however, is individualized.  It seems quite a leap to question compliance with child find without a study that investigates a large number of individual cases.

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By Timothy E. Gilsbach

Included within the federal funding provided for in the American Recovery & Reinvestment Act (ARRA) is money for public education.  It is estimated that Pennsylvania will get $2.6 billion of funding for education to be spend on IDEA programs, Title I and Title II programs and on the State Fiscal Stabilization Fund from now until September of 2011.

While the ARRA imposes limits on how the money will be spent, the legislature is responsible for allocating the funds and may do so as it deems fit, subject to the limitations included by the federal government.  It appears that at least several proposals are in the works on that front. 

In addition, Districts who receive the funds should be aware that there are various limits on how the funds can be spent.  Finally, it is important to note that charter schools, in addition to school district, will qualify for some of the funding. 

Additional updates will be posted as the process of allocating the funds moves forward.    

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By Timothy E. Gilsbach

The Pennsylvania House is currently considering House Bill No. 704, that would change the way that state funding for Special Education is provided to local school districts.  Under the current approach, each district is provided funding under the assumption that sixteen percent of its students are eligible for special education.  The proposal currently before the House would change the manner in which this is calculated.

According to the Bill 704's supporters, the Bill, if passed, would base funding upon a five year average of actual student enrollment for special education for each district.  In addition, it would multiply the amount of money provided by the state to districts for special education students to 1.3 times the amount provided to regular education students. 

Bill 704 was only recently presented and, if passed, is likely to change.  Check back for further detailsas it makes its way through the legislative process. 

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By Timothy E. Gilsbach

When a school district goes through an IDEA Due Process Hearing and a mixed result comes back, it is sometimes difficult for the district to determine if an appeal to the Federal District Courts is appropriate or prudent. The Third Circuit Court of Appeals has now made that decision just a little easier in the case of Jonathan H. v. Souderton Area School District

In Jonathan H. the Administrative Due Process Hearing ended with a mixed result.  The Parents waited until the 90^th day after the issuance of the Hearing Officer's Decision to file their Complaint in the Federal District Court.  Put another way, the Parents waited until the last possible day to file.  The school district filed an Answer to the Complaint asserting a counterclaim in the nature of a challenge to portions of the Hearing Officer’s decision. The District Court found the counterclaim was untimely because it was not brought within 90 days of the Hearing Officer’s Decision and dismissed the same as untimely.

The Third Circuit overturned that decision, reasoning that a counterclaim is reactive and not an action brought under the IDEA.  Accordingly, counterclaims in IDEA cases are not limited to the 90 day time-line, but instead are controlled by the time-lines for an Answer under the Federal Rules of Civil Procedure.  In addition, the Court explained that requiring Districts to bring an action in the form of a counterclaim would result in district’s filing as a protective measure, just in case the Parents filed, which would create unnecessary litigation.

The case makes things a little easier for school districts that may not wish to appeal mixed Due Process Hearing results, but do not want to waive the right to raise issues on appeal should the Parents choose to appeal.  

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Schools in Pennsylvania have until January 30, 2009 to apply for special education contingency funds.  The Pennsylvania School Boards Association issued the following statement.

The Department of Education is reminding school administrators that applications for special education contingency funds currently are being accepted via the Web-based application system. Local education agencies that wish to submit contingency fund applications have until Jan. 30 to complete the application process. The user identification and password from the previous year may used for the 2008-09 applications. LEAs that have not previously received passwords should request them from cfunds@leaderservices.com to access the e-application and complete the process. If you have not received a response to your password request within a day, notify Dr. Ron Wells at ronwells@state.pa.us or call (717) 783-6882. Applications will not be accepted after Jan. 30. The guidelines are available here.

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Its time again to write about some comments. I wrote about the District of Columbia School Chancellor’s efforts to implement performance pay in “Teacher pay and tenure: creating a free agent market.”  Professor Fox added a comment regarding improvement to the current common rater method of assessing performance. I also wrote a piece about confederate flag waiving students (“Yet another confederate flag case”)” that garnered a response from Lynn accusing me of revisionist history and political correctness (me!). Craig wrote an interesting question in response to the entry “College-Student Disciplinary Contract Claims.”  Finally, in “Fourth Circuit Placement Decision Revisited: the last word,” I brought readers up to date on the case at issue and responded to a previous comment critical of my suggestion that open and honest communication can be a salve to the bad decision. Well, I got a comment from Nagla in support of my view!  Thanks for all your comments, even if I don't get to address each one.  Now to the four comments.

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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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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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