VASSP 2007 Special Education Law Update

Kathleen S. Mehfoud, EsquireRiverfront Plaza, West Tower901 East Byrd Street, Suite 1700Richmond, Virginia 23219Telephone: (804) 344-3400

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MAJOR SPECIAL EDUCATION MISTAKES

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Ignoring referrals and failing to handle them through the child study process.

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Failing to conduct evaluations and relying on private evaluations.

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Missing timelines for eligibility determinations and IEP development.

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Holding unreasonably lengthy meetings or multiple meetings.

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Giving in to parents’ unreasonable demands.

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Writing services or accommodations in the IEP which exceed IDEA requirements.

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Writing services into the IEP with the expectation that the services will be provided on a temporary basis only.

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Failing to implement the IEP as it is written.

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Writing IEPs that are so lengthy that they cannot be implemented in a year’s time.

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Ignoring discipline procedures for children with disabilities.

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CASE UPDATE

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Autism ~ Private Placement Cases

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County School Board of Henrico County, Virginia, v. R.T., 433 F. Supp.2d 657 (E.D. Va. 2006) and 433 F. Supp. 692 (2006).

R.T. age 9 and student with autism.

Placed in half day program based on TEACCH model for about two months.

Parents and expert observed student in the program.

Parents placed R.T. at Faison School.

SB lost due process hearing and was ordered to pay.

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In appeal to federal district court, the court held:

Window of opportunity closes between ages 6 and 8 years.

Did not hold that TEACCH was inappropriate in general.

Found that ABA was widely researched.

Rejected that student was making progress consistent with ability.

School division had to pay retroactively and prospectively for the private school placement.

Case was settled and student was returned to the Henrico Public Schools.

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J.P. v. County School Board of Hanover County, Virginia, 447 F. Supp.2d 553 (E.D. Va. 2006).

Twelve year old student with autism.

Parents placed him in a private ABA autism program at Spiritos and school division shared cost of placement by agreement.

Parents placed back in public school in 2004-2005.

Public program provided extensive program that included1-1 assistant, some ABA, and self-contained placement.

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Parents then pulled student out of school and placed at Dominion School in the Fall of 2005.

The school was new with only three students.

HO found for Hanover.

Parents appealed to federal court.

District court found for parents and ordered reimbursement.

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Court’s decision was based on:

No deference to hearing officer decision because of inadequacy of opinion.

all witnesses credible no findings of fact incorrect assignment of burden of proof.

Charts of progress

Inability of public school staff to implement and chart progress and collect data

Medical reports from evaluators who had not testified at hearing or in court.

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Court ordered $182,971 in attorneys’ fees

and $33,187.90 in reimbursement.

On appeal to Fourth Circuit.

One good aspect of decision—no obligation to permit parents or experts into schools for observations.

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TIPS FOR AUTISM CASES:

INSTILL CONFIDENCE IN OUR PERSONNEL THROUGH CERTIFICATION AND TRAINING.

COLLECT DATA TO SHOW THAT PROGRESS WAS MADE.

OFFER COMPREHENSIVE PROGRAMS.

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A.K. v. Alexandria City School Board, __ F.3d __, 107 LRP 22828 (4th Cir. 2007).

A.K. has Aspergers Syndrome and OCD.

He was placed in a private residential program in Massachusetts by his parents.

The 2004-2005 year IEP was developed over 8-10 hours.

Only a few minutes concerned the placement decision.

The IEP offered a private day school.

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Five private day schools were mentioned and only two accepted him for admission.

Parents said a private day school might work but not any of the ones proposed or in the geographic area.

The school division experts said that either of the two private placements was appropriate.

The parents said through their experts that the schools were inappropriate.

HO found for Alexandria.

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The district court affirmed but the 4th Circuit reversed.

The school selected to implement the IEP must be named in the IEP when the parents were challenging the appropriateness of the schools in the area.

School selection can be an important part of the IEP process and is a substantive part of the process.

The IEP team must evaluate the proposed private school for its ability to implement the IEP.

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Supreme Court Update

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Arlington Central School District Board of Education v. Murphy, 126 S.Ct. 2455 (2006).

Due process hearing regarding a private placement.

Parents prevailed and sought $29,350 in fees for the services of an educational consultant.

District court reduced the fee recovery to $8,650 and the 2nd Circuit affirmed.

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Arlington Central School District Board of Education v. Murphy, 126 S.Ct. 2455 (2006).

Supreme Court determined that the IDEA does not allow for the parents to recover the costs of expert witnesses.

Consultants and advocates?

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Winkelman v. Parma City School District, U.S. Supreme Court 2007

Parents filed appeal to 6th Cir. without an attorney.

School Board filed a motion to dismiss the appeal.

Argued that parents could not represent their children in court under IDEA claims and could only represent themselves.

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Winkelman v. Parma City School District, 150 Fed. Appx. 406 (6th Cir. 2005).

Supreme Court held that parents may bring IDEA actions in federal court without an attorney.

More appeals to federal court?

Statue of limitations not tolled due to infancy of student.

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MORSE V. FREDERICK, 551 U.S. ___ (2007)

BONG HITS 4 JESUS CASE

“WE HOLD THAT SCHOOLS MAY TAKE STEPS TO SAFEGUARD THOSE ENTRUSTED TO THEIR CARE FROM SPEECH THAT CAN REASONABLE BE REGARDED AS ENCOURAGING ILLEGAL DRUG USE.”

“…WE AGREE WITH THE SUPERINTENDENT THAT FREDERICK CANNOT ‘STAND IN THE MIDST OF HIS FELLOW STUDENTS, DURING SCHOOL HOURS, AT A SCHOOL-SANCTIONED ACTIVITY AND CLAIM HE IS NOT AT SCHOOL.’”

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A PRINCIPAL MAY RESTRICT STUDENT SPEECH AT A SCHOOL EVENT WHEN THAT SPEECH IS REASONABLY VIEWED AS PROMOTING ILLEGAL DRUG USE.

SOME SPEECH THAT MAY BE PERMITTED OUTSIDE OF SCHOOL MAY BE REGULATED IN SCHOOL.

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“SCHOOL PRINCIPALS HAVE A DIFFICULT JOB, AND A VITALLY IMPORTANT ONE. WHEN FREDERICK SUDDENLY AND UNEXPECTEDLY UNFURLED HIS BANNER, MORSE HAD TO DECIDE TO ACT—OR NOT ACT—ON THE SPOT. IT WAS REASONABLE FOR HER TO CONCLUDE THAT THE BANNER PROMOTED ILLEGAL DRUG USE—IN VIOLATION OF ESTABLISHED SCHOOL POLICY—AND THAT FAILING TO ACT WOULD SEND A POWERFUL MESSAGE TO THE STUDENTS IN HER CHARGE, INCLUDING FREDERICK, ABOUT HOW SERIOUS THE SCHOOL WAS ABOUT THE DANGERS OF ILLEGAL DRUG USE.”

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Board of Education of the City School District of the City of New York v. Tom F., 193 Fed. Appx. 26 (2d Cir. 2006).

The parents prevailed at the due process hearing regarding reimbursement.

The district court reversed:

“where a child has not previously received special education from a public agency, there is no authority to reimburse the tuition expenses arising from a parent’s unilateral placement of the child in private school.”

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Board of Education of the City School District of the City of New York v. Tom F., 193 Fed. Appx. 26 (2d Cir. 2006).

2nd Circuit reversed and said parents can get reimbursement if they give reasonable notice:

They reject the proposed IEP; and

They plan to enroll their child in a private school at public expense.

Can parents be reimbursed even if the student never obtained special education services from a public school division?

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Bacon v. City of Richmond

A group of school children and their families sued the City and the School Board alleging that the school’s buildings were inaccessible.

The district court held that the City and the School Board were both proper and necessary parties to the action: the City is responsible for appropriating funds and the Board is responsible for implementing the remedial project.

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The Bacon case cont’d

The City and plaintiffs appealed.

The Fourth Circuit reversed the district court’s ruling.

The Fourth Circuit pointed out that Virginia law vests each school board with exclusive control over its schools.

Thus, the court held that the School Board was solely responsible for ensuring that its schools are ADA compliant.

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Board of Education of Montgomery County, MDv. S.G.

This case involved a dispute over eligibility.

The student was found not eligible for special education as a student with an emotional disturbance because the eligibility committee determined that there was no adverse educational impact.

The court disagreed and determined that the evidence demonstrated that the student’s emotional disturbance did adversely affect the student’s educational performance.

Absences could be considered as an adverse affect.

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Cave v. East Meadow Union Free School District, et al.

Hearing impaired student wanted to bring a service dog to school with him.

The dog was apparently trained to alert the student to sounds and alarms.

The school declined to allow the dog into school.

The parents sued for $150 million, alleging violations of the ADA, Section 504, and several New York state statutes. The parents contended that the IDEA was inapplicable.

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The Cave case cont’d

The court held that the state statutes raised were inapplicable.

The court held that the IDEA was applicable because the parents were essentially challenging the adequacy of the student’s IEP. However, the parents failed to exhaust their administrative remedies.

The court held that the school had reasonably accommodated the student and thus satisfied the requirements of the ADA and Section 504.

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The Cave case cont’d

Accommodations provided by the school:

sign language interpreter;

FM system;

student note taker;

extended time for tests; and

a one-on-one specialist teacher.

The court ruled in favor of the school district.

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THE END