Did you know that . . .

According to "Workers World" (and I can't get a red star to appear as the "o" in world), Cuba has only 150 to 170 children diagnosed with Autism ("only 150 to 170 Cuban children have been diagnosed with autism, far fewer than the 1 out of 170 reported in the U.S.").  It is unclear to me whether this is because the Cuban health care system has worked a wonder or because authorities fail to diagnose the disorder.

Fourth Circuit placement decision revisited: the last word

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.

Ability grouping: issues and concerns?

Recently, a reader wrote with a question and a situation.   

“I was looking at your website, and I was unable to find the answer to this question.  Is ability grouping allowed under Pennsylvania law?  In other words, a school has four classes for each grade level, and the students are grouped into four ability levels, from high achieving to low.  I've heard conflicting answers would like your insights.”

As readers know, I cannot give specific legal advice through this Blog.  But I can give my thoughts, generally (and welcome to hear yours), about this situation, so here goes. 

I am not aware of any specific legal prohibitions on ability grouping as a general matter; however, certain circumstances might present problems for a school. But first, what we do know is that gifted and special education both support the notion of, at least, narrow ability grouping. 

At the higher end (whether gifted, disabled, or neither), many schools offer Advanced Placement and honors courses, which by their nature, are groupings by ability to achieve in that subject. Many schools also use a “pull-out” style of program to offer enrichment to gifted children, especially at the elementary level (I am not addressing this further, today).

On the opposite side, special education laws have always presented tension between the opposite forces of placement in the least restrictive environment (“LRE”), known as “inclusion” or “mainstreaming” versus grouping by common needs for more intensive instruction.  

This tension can, I believe, carry over where ability grouping and the individual LRE right meet each other. Ability grouping is a broader application of common grouping for intensive, level-appropriate instruction. This does seem to make sense. But, depending on the make-up of the various ability levels, a student or group of students might argue the grouping violates the LRE right. That is, a particular level might have a statistically too high number of special education students thereby rendering the apparent LRE placement illusory.

In such a case, that would essentially be a segregated setting, which brings up a final concern: discrimination. If minority or protected class students make up a disproportionate number of students in a particular track, the school could be open to charges of improper segregation and discrimination.

The lesson is that a school using ability grouping is probably doing so for legitimate pedagogical reasons. But the school must be aware of how the student population is grouped as factors other than just ability can have serious consequences. 

Update to a problematic placement decision

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.

Changes for Pennsylvania special education practice

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?

·        Probably more court cases.

·        Hearings might look more like traditional discovery with the expectation that the hearing is only the first step, a precursor to court.

·        Related to this, given the short time lines for administrative hearings, court proceedings will look more like traditional litigation than the paper appeal that now usually occurs. The parties will be submitting more evidence and expert testimony in court, particularly as, once in court, the Federal Rules permit discovery opportunities and more time to develop a case. Indeed, in this situation, the lawyers probably have a duty to their clients to use all the available court-level tools.

·        And that case might likely be a more traditional de novo review without deference to the hearing officer. The “presumed expertise” of the hearing officer will be challenged. One of the main problems with the current system is that hearing officers are not always educational experts or at least are not trained in current practices like educators and psychologists. Thus, the losing party will argue that the court should give no deference to the decision. This, of course, fits well with offering additional evidence.

·        Whether the presumed expertise stands or not, given only one level of presumed expert review, administrative findings of fact are likely to be subject to reversal and modification than currently.

·        Additional evidence proceedings in court will become actual trials if the deference standard is not going to apply.

The experience in one-level review states, such as New Jersey, might be instructive to some extent. In that regard, it seems in the Third Circuit that more federal special education cases come from New Jersey than Pennsylvania. But still, it will probably be only somewhat instructive. As noted, in Pennsylvania we will be dealing with a sudden change, from a system that by fault or designed weeded out many cases, to a situation in which both sides will scramble for an advantage. 

In the end, the field will be of special education litigation, not special education hearings.

Medicaid reimbursement rule is now final

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.

Update to: special education placement and the problematic decision out of Virginia

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.

Tom F.: the decision that isn't

Mark Fitzgerald is again our guest blogger, writing about the U.S. Supreme Court's non-decision about tuition reimbursement.  Mark is a member of the Education Law Group with a practice emphasis in Labor and Employment. Click here to find out more about Mark’s background and contact information. 

In a one sentence decision, an evenly divided U.S. Supreme Court in Board of Education of the City School District Of New York, No. 06-637, --- U.S. --- (2007) (Justice Kennedy did not participate) affirmed the decision of the Second Circuit Court of Appeals in finding parents need not accept a public school offer of a free appropriate public education before enrolling their child into a private school placement for purposes of the Individuals With Disabilities Education Act (“IDEA”).  Substantively, however, the Court “punted” on analyzing the statutory constructs of the IDEA to determine whether such a right exists for parents who have never accessed public education prior to unilateral private school placement. Therefore, the dispute surrounding this issue was not put to rest late last week.

With this “decision,” the Supreme Court affirmed an equally short decision by the Second Circuit, which had vacated and remanded the holding of the trial court in light of the decision in Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2d Cir.), cert. denied, --- U.S. ---, 127 S.Ct. 3054 (2006). Therefore, while the decisions, or lack thereof, of both the Second Circuit and the Supreme Court together combine to form a modest sized paragraph, our analysis must turn to the comprehensive, yet peculiar decision by the Second Circuit in Frank G. in order to glean what the Supreme Court decision means for school entities, if anything at all.

For practical purposes, the Frank G. decision does not reveal anything significant that school entities did not already know: LEAs have an ongoing obligation to identify, evaluate, and propose an appropriate program and placement to all eligible children within the boarders of the LEA. However on a legal level, the results of Frank G. reveal a split among the federal appeal courts regarding the need for parents to accept a district’s offer of FAPE before unilaterally removing the child from the public school system and seeking tuition reimbursement at a private school.

In analyzing the tuition reimbursement provision of IDEA, Frank G., unlike the trial court in Tom F. and the First Circuit in Greenland School District v. Amy N., 358 F.3d. 150 (1st Cir. 2004) concluded the statute is ambiguous on the issue of whether parents were required to previously receive special education services before enrolling the student in a private school. Therefore, in applying the canons of statutory interpretation to an otherwise ambiguous provision of the IDEA Frank G. concluded reimbursement is available to parents who do not accept a district’s offer of FAPE before enrolling their child into a private program.

Greenland involved a similar tuition reimbursement dispute and the court concluded otherwise, that the IDEA limits tuition reimbursement to parents who have children who had previously received “special education and related services” while in the public school system or perhaps those who at least timely requested such services while the child is in public school.

With the Supreme Court failing to substantively analyze the language of the IDEA and the case law accompanying this issue, the question of whether parents are required to accept an offer of FAPE before seeking tuition reimbursement will likely arise another day. Until resolved by the Supreme Court, Frank G. and Greenland remain in conflict with each other.

In many respects, regardless of Frank G., school districts still control their own destiny regarding liability for tuition payments. While Frank G. concluded a parent need not accept a district’s offer of FAPE and go through the process of enrolling the child into public schools, the court did say a school district must still be afforded the opportunity to evaluate and propose a program and placement for the child at issue, which is consistent with the earlier holding in Greenland. Therefore, so long as a district appropriately identifies a student’s potential need for specially designed instruction and follows such identification up with appropriate evaluations and programming, a district should have little concern.

 A coda to the problematic Frank G. decision is the ever increasing propensity for judges to “Monday Morning Quarterback” the decisions of impartial hearing officers and appeals panels by considering new evidence not available at hearing.

The Student in question in Frank G. had attended a parochial school prior to his parents seeking an evaluation by district. While the Student was attending the parochial school, the district completed its evaluation and found him eligible for special education. The district subsequently proposed a program and placement in the district. The parents rejected the offer and sought private placement at a new private school (“Upton Lake”).

Evidence presented at the administrative hearings revealed the proposed program and placement offered by the district was inappropriate, a point later conceded by the district. The hearing officer further concluded the proposed private school placement was likewise not appropriate. In doing so, , the Hearing Officer relied on evidence of regression in various academic areas as well as a program and placement that was not reasonably calculated for the Student. A state appeals officer affirmed the decision.

On appeal, the trial court reversed the administrative decisions by considering post-hearing evidence. While the trial court acknowledged that Upton Lake provided the Student with neither an individual aide nor a direct consultant teacher, it was satisfied that the Student’s regular education teacher worked with the Student “when possible.” The court was further persuaded by the Student’s academic progress, which was generally memorialized through one administration of the Stanford Achievement Test.

Ironically, the trial court was willing to overlook the same shortcomings with the private school that resulted in liability to the public school, an all too-frequent and unfortunate irony in these cases.

Special education placement: a problematic decision out of Virginia

“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. 

The distinction between “location” and “placement” and how each is decided upon is not a lawyer’s fiction, but is, for example, found in the federal regulatory comments. See 71 Fed. Reg. 46719 (Aug. 14, 2006).  In discussing public comments to the proposed regulations regarding changes in placement for disciplinary reasons, the U.S. Department of Education stated “We interpret ‘setting’ in this context [the IAES] to be the environment in which the child will receive services, such as an alternative school, alternative classroom, or home setting. In many instances, the location and the setting or environment in which the child will receive services are the same. It is possible, however, that a school may have available more than one location that meets the criteria of the setting chosen by the IEP Team. For example, an LEA may have available two alternative schools that meet the criteria of the [IAES] chosen by the IEP Team. In those cases school personnel would be able to assign the child to either of these locations, if the IEP Team has not specified a particular one.”  

So not only does this A.K. go against prevailing understanding, it requires a public agency to identify a specific school and hope the private school will actually accept the child. This essentially requires public school officials to divine state of mind of private school personnel regarding their belief of whether the private school is appropriate for the child. And, let’s not forget, that the IEP is a “guarantee” and a “contract” promising that the child will go to that specific school, an argument parents disappointed by a subsequent rejection will surely make. Alternatively, the public agency will have to secure a spot in the private school in advance of the IEP, which in many cases requires significant advanced financial obligations. In that case, there is no guarantee that parents will ever permit the child to attend the private school as well as the very real risk of being accused of “predetermining” the placement.    

The decision will prove unworkable in practice and detrimental to already stressed public education agencies. Public schools should, if not able to follow this new outcome, document every step of the placement decision – including the downside of the various options along the way. 

The best solution to problematic law, as always, is to create and maintain a healthy and cooperative relationship with student families. This should be the top priority to both serve the student appropriately and possibly avoid problematic situations. In most cases, the school and parents are able to work through the process successfully. But for those unfortunate cases that go to litigation, A.K. is a real problem.

OSEP letters January - March 2007

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.

Exhaustion of remedies in special education

The federal District Court for the Middle District of Pennsylvania issued a seemingly routine decision that is more than it appears.  Vicky M. v. Northeastern Educational I.U. 19  (although the docket numbers and plaintiff names differ, this decision appears to otherwise be the same as John G. v. Northeastern Educational I.U. 19, Civ A. 06-1900, --- F. Supp. 2d ---, 2007 WL 1450365 (M.D. Pa.). 

The court’s treatment of the Section 1983 claims should be reconsidered in light of A.W. v. The Jersey City Public Schools  341 F.3d 234 (3d Cir. 2007), which was issued nine days later. But more than that, the Third Circuit’s treatment of exhaustion of remedies in such cases now needs to be revisited, as Vicky M. unintentional shows.

Because the family in Vicky M. sought money damages, the court ruled exhaustion was exempted

as futile. The court, relying on and quoting W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995), wrote at page 18, “Recognizing that damages are available under § 1983, but not under the IDEA administrative procedures, the Matula court then concluded that ‘by its plain terms [IDEA] does not require exhaustion where the relief sought is unavailable in an administrative proceeding.’” Vicky M. thereafter discusses some legislative history regarding previous incarnations of the IDEA, as discussed in previous cases, as further supporting the exhaustion exception. 

But A.W. now controls, not Matula, and families no longer can pursue money damages claims via a § 1983 cause of action. This knocks down the first pillar of support to the exception. The legislative history relied on is not from the current IDEA as passed in 2004, knocking out the second pillar. And regardless of current legislative history – an oxymoron, to be sure – the plain text of IDEA of 2004 extends an IDEA-based cause of action only to those “aggrieved” by the administrative decision, 20 U.S.C. § 1415(i)(2)(A), taking out a third pillar of a now unsupportable exception.

The “implementation” exception to exhaustion noted by the court is, by all accounts, supported only by the few ancient statements of legislative intent. In contrast, exhaustion under IDEA of 2004, as well as previous versions, is required not only for “identification, evaluation, or educational placement,” but also “the provision of a free appropriate public education.” 20 U.S.C. § 1415(b)(6). Implementation – whether the absolute failure or, more often, a dispute over appropriateness – is a part of FAPE. Further, the 2006 federal regulations have detailed provisions and procedures for filing complaints with the state educational agency, including complaints alleging the “failure to provide appropriate services.” 34 C.F.R. §§ 300.151-300.153

Given the complexities involved in special education, especially about the quality of implementation, and given the procedures in place as well as the recent turn of events stemming from A.W., it would be a wonder if a court did not require exhaustion in just about every conceivable instance and, thereby, have the benefit of “expert” administrative review.

And the impact of the Winkelman decision is. . . .

The U.S. Supreme Court’s May 21, 2007 decision in Winkelman v. Parma City School District says parents are permitted to represent their own special education interests in federal court.  Parents, schools, and the courts will, of course, feel the impact of this decision; only the degree of impact, particularly the amount of litigation, remains uncertain.

The Court’s actual pronouncement is not very remarkable. That parents have certain special education rights has never really been in doubt. All the decision adds is that parents have the right to enforce IDEA’s “other mandates” such as the child’s right to FAPE. “Parents may seek,” the Court wrote at page 15, “to enforce this mandate through the federal courts, we conclude, because among the rights they enjoy is the right to a free appropriate public education for their child.” (Emphasis added.)  

In other words, parents have the right to “enforce” a right, that is, the child’s right to FAPE. 

In my view, this is a case where the dissent got it right:

the majority decision takes a fundamental common law rule, complete eviscerates it, and does so based on reading between the lines despite no clear statutory text intending to upset existing law. Be that as it may, the dissent is not now the law.

In the end, parent attorneys probably will use the Court’s broad words of substantive parental rights to drive new due process issues, Section 1983 Civil Rights litigation and money damages claims. Ultimately, this concern, too, will come before the Supreme Court as the Courts of Appeal are split on whether a simple violation of IDEA gives rise to money damages, either directly or via § 1983. More on that later when I discuss A.W. v. The Jersey City Public Schools in "Money damages, disabilities, and education."