The Year in Review 2010-2011 | The Law Offices of Caryl Andrea Oberman

By Caryl Andrea Oberman, Esq. and Andrew E. Faust, Esq.[1]

The IDEA Part C Regulations are finally published (it only took four years), the Hearing Officers have revised their standard procedures, and the case law has been often interesting, but rarely ground-breaking.

While bipartisanship is not likely, in the spirit of civility (which has not yet given up the ghost), we present our review of 2010-2011.

I. The Part C Regulations

The IDEA Part C regulations govern early intervention services and procedures for children from birth to age 3. 34 C.F.R Part 303. The most important provisions:

If early intervention services cannot be provided in a child’s natural environment, the IFSP must provide a written justification based on the child’s outcomes. Section 303.344(d).

Part C services must be appropriate and provided at no cost to parents. Section 303.15.

Parents are entitled to prior written notice when a child is referred for Part C services, including information on procedural rights and confidentiality requirements. Section 303.209(b)(1)(i)-(ii).

If a child is found to be ineligible for Part C services, the parent must be given written notice of dispute resolution rights and procedures. Section 303.322.

Parents are entitled, at no cost, to copies of their child’s IFSPs, evaluations and similar records. Section 303.409(c).

Every IFSP must include a plan for transition to Part B services. Section 303.209(d)(2).

The SEA/LEA must provide a central directory of early intervention service providers either online or in a similarly accessible manner. Section 303.117.

States need prior consent from parents before enrolling their child in public insurance and before using any public insurance benefit to fund early intervention services. States must provide written notice that they are using public or private insurance benefits for early intervention services, which must inform parents that the use of the benefits must be at no cost to them.[2] Section 303.520(a).

With some minor exceptions, FERPA now explicitly applies to Part C. Section 303.29.

An IFSP team must include the parent(s) and one or more qualified individuals, at least one of whom must be a service coordinator. A single individual with multiple qualifications cannot constitute an IFSP “team”. Section 303.24. However, a single individual with multiple qualifications can constitute the team for a multidisciplinary evaluation. Sections 303.321(a), 303.31, 303.113.

If the agency proposes to screen rather than evaluate a child for services, the parents must be informed of that fact and informed that the parent has a right to request an evaluation at any time during the screening process. Section 303.320.

Timeframes are made explicit. Within seven days of a child receiving a diagnosis or completion of an evaluation that may render the child eligible for early intervention services, primary referral services must occur. Section 303.303(a)(2)(i). The timeline from referral to IFSP meeting is 45 days, (with a few exceptions such as illness or family emergency). Section 303.310. IFSPs must include a service start date, which must be as soon as possible after parental consent is given. Section 303.342(e). Transition from Part C to Part B services must begin no earlier than nine months prior and no later than 90 days prior to the child’s third birthday. If a child is referred for service fewer than 45 days before his or her third birthday, the early intervention agency is not required to conduct an evaluation but must with parental consent refer the child to the appropriate Part B SEA and LEA. Section 303.209(b)(1)(iii).

The early intervention agency may not use due process hearing procedures under Part C or under Part B to challenge a parent’s refusal to provide consent under Section 303.420(a), which includes consent for evaluations and assessments. Section 303.420(c).

II. Hearing Officer Standard Procedures

Both the Generally Applicable Prehearing Directions and the Due Process Hearing Timelines/Scheduling have changed. Significantly, some of the more stringent restrictions on the direct examination of an expert witness who has produced a report have been somewhat relaxed, timing has been tightened, and there are new decorum rules governing use of electronic devices and conducting work unrelated to the hearing.

III. In the Third and Other Circuits

Exhaustion:

In R.R., L.R., D.R. v. Manheim Township School District, 412 Fed.Appx. 544 (3d Cir. 2/10/2011), the Circuit Court upheld the District Court’s dismissal of claims seeking monetary damages for the district’s failure timely to evaluate and failure to provide language therapy, matters not adjudicated at the administrative hearing stage, reiterating its emphasis on the factual underpinnings of the claims raised rather than on the relief sought. This position was previously held, and recently abandoned, by the Ninth Circuit in the well-reasoned Payne v. Peninsula School District, ___F. 3d ___, 2011 WL 3211503 (9^th Cir. 2011).
Immunity:

In Rodrigues v. Fort Lee Board of Education, 2011 WL 4005211 (3d Cir. 9/9/2011), the Court held that New Jersey’s Office of Administrative Law, the state agency charged with conducting IDEA due process hearings, was immune under the Eleventh Amendment from claims for Fourteenth Amendment violations brought under Section 1983. The Court also held that the failure of the student’s IEPs to include objectively measurable goals was “a procedural error.”.

Bias:

In A.B. v. MCIU, 409 Fed.Appx. 602 (3d Cir. 1/27/2011), the Court rejected a bias allegation against a hearing officer for failure to disclose that the hearing officer was a former co-worker of MCIU counsel and a current co-worker of MCIU counsel’s wife. (In other universes, that could be a problem. In our small and intertwined one, not so much.)

State Created Danger:

In a case with horrific facts, Brown v. School District of Philadelphia, No. 10-4184 (3d Cir, 9/20/2011), the Court affirmed the lower court’s summary judgment in favor of the District and against a student with mild MR and communication disabilities who was sexually assaulted by five fellow students in the unlocked auditorium during the lunch hour at her school in Philadelphia. The Court rejected the claim of state created danger, holding that the District took no affirmative action to place Brown in danger, or to make her more vulnerable to the assault. Brown argued that the District promised to provide her with one-on-one adult supervision and that her family relied on that promise, but the Court held that crux of that the District’s promise and failure to provide her with the supervision was not an affirmative act.

Responsible Parties:

Neither the area vo-tech school nor the school district of residence is responsible for providing FAPE to a student enrolled in a cyber charter, and therefore neither has discriminated against the student on the basis of disability. Dutkevitch v. PA Cyber Charter School, et al., No. 09-2393 (3d Cir., 7/21/2011).

IV. In the District Courts

Section 504:

Centennial SD v. Phil L. and Lori L., 54 IDELR 74 (E.D. Pa. 2010): Changes brought about by the ADAA do not apply retroactively to disputes about 504 eligibility. Hearing officer erred in failing to consider the mitigating effects of a student’s ADHD medication and on remand was to consider whether the student’s ADHD substantially limited a major life activity when he took his medication as prescribed.

Adam C. v. Scranton School District, 56 IDELR 127 (M.D. Pa. 2011): Parents of a student with autism could pursue a 504 claim not only against the school district, but also against the private school and intermediate unit that provided his educational services. Inadequate services provided to all students in the school, as evidenced by the school’s inability to manage behaviors, supported a claim for denial of FAPE, and was not a defense to a claim of discrimination.

J.C. by R.P. v. Lakeland School District, 2011 WL 1327439, (M.D. Pa., 4/5/2011): A 504 claim based on IDEA violations need not assert intent to discriminate. In the Third Circuit, parents alleging a 504 violation generally need not allege that the SD discriminated intentionally, if the parents have also alleged the student was denied FAPE under Part B. See also Adam C. v. Scranton School District, 2011 WL996171, (M.D. Pa., 3/17/2011). However, nearly every other circuit requires that a parent allege bad faith or gross misjudgment to assert a 504 claim.

Russo v. Diocese of Greensburg, 55 IDELR 98 (W.D. Pa. 2010): A student who graduated from a nonpublic sectarian high school could pursue disability and gender discrimination claims against the diocese and parochial school under Title IX and the Rehabilitation Act due to their receipt of federal funds. Although the high school did not participate in the national school lunch program, another school in the diocese did. The other school’s receipt of federal funds allowed the applicability of Title IX and 504 to carry over to the high school and the diocese itself. The court held that even if the high school were not subject to suit through the other school’s lunch program, it was still exposed to liability because it participated in the federal E-rate program, providing technology funding to promote Internet access.

Ridley School District v. M.R. and J.R., 2011 WL 499966, (E.D. Pa., 2/14/2011): Glitches, teacher reluctance and minor noncompliance do not rise to the level of a Section 504 violation. The case is also notable for its holding that the failure of a district to use peer reviewed, research-based programs and curricula does not in itself constitute a denial of FAPE.

Bullying:

T.B. and M.B. ex rel. A.B. v. Waynesboro Area School District, 56 IDELR 104 (M.D. Pa. 2011): A school district has no obligation to provide a private placement simply to alleviate concerns about peer harassment. The IEP can address social and communication deficits and offer support. If the IEP addresses the behaviors that made the student a target for bullying, then it is adequate. (emphasis supplied). Fix the victim, not the perps. See also J.E. v. Boyertown Area School District, 2011 WL 476537 (E.D. Pa. 2/8/2011) (fear of bullying does not render a public program inappropriate).

Pendency:

J.E. v Boyertown Area School District again, but this time 2011 WL 3851973 (E.D. Pa. 9/1/2011). (pendency lasts only through the District Court level, not through all federal appeals). This case is currently on appeal to the Third Circuit, which has yet to rule definitively on the issue.

Settlement Agreements:

Bristol Township School District v. S.W., 55 IDELR 103 (E.D. Pa. 2010): The court enforced a FAPE settlement despite parents’ claims that its release provisions are overbroad. The court agreed that the parties intended the release to cover all claims against the district, including those not asserted in parents’ original complaint. A waiver of all claims arising out of the same set of facts was standard release language. Parents had an attorney present for negotiations.

I.K. v. School District of Haverford Township, 2011 WL 1042311 (E.D. Pa. 3/21/2011): Dismissal of a due process hearing case after a purported settlement agreement doe not constitute an adjudication that triggers the 90 day appeal period. Hearing Officers have the authority to determine whether or not a valid settlement agreement exists.

Transition Plans:

High v. Exeter Township School District, 54 IDELR 17 (E.D. Pa 2010): An 11th grader’s transition goal of attending college did not invalidate an IEP goal that called for her to read at a sixth-grade level by the end of the year. The goal was reasonable in light of the student’s severe deficits. The transition plan focused on college preparedness, but the court rejected the claim that the IEP goals failed to match the plan.

Least Restrictive Environment:

Lebron v. North Penn School District, 56 IDELR 72 (E.D. Pa. 2011): In an interesting interpretation of LRE, the court held that the parents of a kindergartener with autism failed to show that the child’s district denied him FAPE in the LRE when it proposed placing him in an autistic support class for half the day and the other half of the day in a typical kindergarten class, since students without disabilities also only attended school for half a day with their typical peers.

Funding:

C.G. v. Commonwealth of PA Department of Education, 56 IDELR 44 (M.D. Pa. 2011): The court refused to dismiss a class action filed by parents of students with disabilities alleging that Pennsylvania’s special education funding formula violates the IDEA, Section 504, and the EEOA, but dismissed Section 1983 and Due Process claims. The action challenges the census-based funding policy which requires the DOE to allocate special education funds to school districts based on the number of special education students enrolled throughout the state rather than the actual number in each district.

Placement:

R.B. v. Mastery Charter School, 762 F. Supp. 745 (E.D. Pa. 2010): A school’s unilateral disenrollment of a student, however truant, constitutes a change in placement, and the student need not exhaust administrative remedies before seeking immediate interim relief to preserve pendency.

Miscellaneous Matters:

Tragedies in the life of a student parentally placed in a private school do not obligate a school district to reassess its determination of FAPE absent a parental request to do so. Drake P. v. Council Rock School District, 2011 WL 2175598 (E.D. Pa., 6/2/2011).

In order to be appropriate, a district’s evaluation need not necessary include an explanation of the significance of test scores. Prior appeals through the state court system do not preclude access to federal courts under the doctrine of res judicata or the Rooker-Feldman doctrine. Council Rock School District v. Bolick, 2010 WL 5186154 (E.D. Pa. 12/22/10).

Attorneys’ fees: inter alia, School District of Philadelphia v. Deborah A., 2011 WL 2681234 (E.D. Pa. 7/8/2011); Public Interest Law Center of Philadelphia v. Pocono Mountain School District, 2011 WL 2746179, (M.D. Pa. 7/12/2011).

Allegedly overzealous parental advocacy and parent-caused delays can excuse district dilatoriness. K.C. v. Nazareth Area School District, 2011 WL 3792405 (E.D. Pa, 8/26/2011).

Private school tuition reimbursement denied: Rachel G. v. Downingtown Area School District, 2011 WL 2682741 (E.D. Pa. 7/8/2011) (Talk, Inc.); L.G. v. Wissahickon School District, 2011 WL 13572 (E.D. Pa., 1/4/2011)(Nexus).

Once a hearing officer determines that a district’s evaluation is inappropriate, the district must fund a new independent educational evaluation. The district is not at liberty to expand or repair prior evaluations. M.Z. by D.Z. v. Bethlehem Area School District, 57 IDELR 5 (E.D. Pa. 2011).

V. In the Agencies

OSEP and OCR have had a busy year, providing guidance (for what it’s worth) in a plethora of areas.

A school district may not deny reimbursement for an independent educational evaluation on the basis that parents did not first provide written notice of their intention to seek one or because the parents did not first discuss the district’s evaluation or their IEE request at an IEP meeting. Letter to Anonymous, 55 IDELR 106 (OSEP 2010).

An IEP team must at least consider a parent’s request to revise its zero tolerance policy to accommodate a student’s disability. The parent requested that the police not be called when her son was involved in fights, and that his IEP reflect that revision since fighting was a manifestation of his disability. Grove City Area School District, 55 IDELR 109 (OCR III, Philadelphia PA 2010).

States may not grant emergency waivers of state-approved certification requirements for related services personnel (speech/language pathologists). Letter to Goldman, 55 IDELR 202 (OSEP 2010).

When peer-reviewed research links the effectiveness of a particular service to its frequency or intensity, both the service and its frequency and intensity must be included in the IFSP and implemented accordingly. Letter to Kane, 55 IDELR 203 (OSEP 2010).

If a private school participates in federally supported programs sponsored by a school district, the district must ensure that the private school does not discriminate on the basis of disability. In Bristol Public Schools, 55 IDELR 207 (OCR I, Boston (CT) 2010), the principal of a private religious school discriminated against a kindergartner with a peanut allergy by excluding her without considering how it could accommodate her disability. The public school district had an obligation to ensure that it did not support or perpetuate disability discrimination by providing significant aid, benefits, and services to any organization that discriminates on the basis of disability.

District’s practice of using Individualized Health Plan to address the medical conditions of students with disabilities instead of evaluating them for Section 504 plans violates that statute. Tyler Indep. Sch. Dist., 56 IDELR 24 (OCRVI, Dallas 2010). In the wake of the ADA amendments, students with conditions like diabetes, seizure disorders and allergies are most likely covered by Section 504 and entitled to its enhanced procedures and remedies.

For purposes of obtaining tuition reimbursement, a parent is not required to inform a school district of her intent unilaterally to place the student in private school each year the child is enrolled there. The notification duty comes into play only prior to the initial removal from public school. Letter to Miller, 55 IDELR 293 (OSEP 2010).

An advocate’s presence at a Resolution Meeting does not open the door to LEA lawyers. An LEA’s legal counsel may not attend a Resolution Meeting just because a parent brings a non-attorney representative, even if that representative is qualified under state law to represent the parent and student at a DPH. Letter to Lawson, 55 IDELR 232 (OSEP 2010).

VI. Pennsylvania Due Process Hearing Decisions

It has been a fairly even split this year, with parents winning slightly less than half of reported 2010-2011 Hearing Officer decisions.

Evidence:

In M.W., Council Rock School District, ODR # 01297-09-10-AS (May 3, 2011), the Hearing Officer rejected the District’s paradoxical assertions that a student’s behaviors could both be significant enough to justify restrictive placement in an autistic support classroom and simultaneously insignificant enough not to merit additional evaluation and programming.

In J.D., Downingtown Area School District, ODR # 00417-0910 KE (December 20, 2010), the Hearing Officer was persuaded that the repetition of the same goal in IEPs from year to year with identical goal performance standards evidenced a failure to address a need, since either progress necessitated increased performance standards or lack of progress necessitated a change in strategy. FAPE was also denied by delivery of services primarily through a one-to-one aide not trained systematically in the delivery of educational services.

Independent Evaluations:

In A.B., Fleetwood Area School District, ODR # 01972-1011 AS (May 14, 2011), the Hearing Officer approved the District’s placement of a “reasonable” cap on the cost of an independent speech and language evaluation.

Medical Assistance:

It is common practice for school districts to seek parental permission to bill Medical Assistance for some IEP services provided to students at school, and that permission is commonly given under the assumption that it will result in no cost or loss of benefits to the parents or student. Apparently, that assumption is mistaken. When DPW placed a lien on a student’s medical malpractice settlement equivalent to the cost of educational services to the student for which his school district received reimbursement from Medical Assistance, his parents filed a due process action against the school district seeking its repayment to DPW of the amount necessary to discharge the lien. In T.S., Nazareth Area School District, ODR # 01650-1011 AS (December 30, 2010), the Hearing Officer ruled that the District was obligate to do just that. Lawsuits ensued. DPW ultimately withdrew its lien in this case, but it is unclear whether the policy has been universally abandoned.

Notice:

In P.V., School District of Philadelphia, ODR# 01541-1011 AS (April 15, 2011), failure to provide prior written notice of the actual school building to which a student would be assigned deprived the student’s parents of their right to meaningful participation and their ability to challenge the appropriateness of a prospective change in program location. The case involved the practice of “upper leveling” (requiring students with disabilities to change schools more times during their elementary years than students without disabilities). Notably, it also held that over-enrollment can constitute a denial of FAPE.

Related Services:

Training in American Sign Language for the parents of a student with a cochlear implant was held to be a necessary related service, but the parents were required to receive the training in this instance during school hours, rather than at home. A.S., Williamsport Area School District, ODR# 02002-10-11-JS (May 17, 2011).

Residential Placement:

Residential placement can still be a necessary part of FAPE, even after Mary Courtney T. v. School District of Philadelphia, 575 F. 3d235 (3d Cir. 2009), both in tuition reimbursement cases (B.S., Radnor Township School District, ODR # 00715-0910 KE (December 28, 2010) and as a matter of prospective placement (K.H., Marple-Newtown School District, ODR # 01716-1011 AS (May 23, 2011)).

Tuition Reimbursement for Typical Preschool:

Although the Hearing Officers have so far not articulated a categorical rule precluding payment for typical preschool, they are coming pretty close. In L.B., Delaware County IU, ODR # 1765/10-11-AS (July 22, 2011), the Hearing Officer found that an IEP that repeatedly called for services to be delivered in a typical preschool was “descriptive” rather than “prescriptive”. In J.H., Bucks County IU 22 EI Program, the hearing officer held that “if the parents of a preschooler freely choose a typical preschool environment, there is no statutory obligation on the part of the LEA to purchase that environment with public funds” (emphasis supplied). See also J.D., Montgomery County IU 23 EI Program, ODR #01524-1011 AS (May 1, 2011). In contrast, last year’s B.D., Montgomery County Intermediate Unit, ODR # 0062-0910 AS/00561-0910 AS (May 8, 2010).

[1] The authors gratefully acknowledge the research assistance of Shannon Rafferty.

[2] The U.S. Department of Education will shortly be publishing Proposed Rulemaking on the use of public insurance benefits and notice requirements for that use under Part B, amending 34 C.F.R. Section 300.154(d)(2)(iv).