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Library of Congress Cataloging-in-Publication Data
Osborne, Allan G. author. Special education and the law : a guide for practitioners / Allan G. Osborne, Jr., Charles J. Russo. — Third Edition.
pages cm Includes bibliographical references and index.
ISBN 978-1-5063-6131-4 (pbk.)
1. Special education—Law and legislation—United States. I. Russo, Charles J. author. II. Title.
KF4209.3.O82 2014 344.73′0791—dc23 2013049068
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Parent and Student Rights
Key Concepts in This Chapter
• Notification and Consent Requirements
• Parental Rights During the IEP Process
• Rights of Noncustodial Parents
• Rights of Students Reaching the Age of Majority
• Family Educational Rights and Privacy Act
In enacting the Individuals with Disabilities Education Act (IDEA),1 Congress intended to make parents partners in the development of appropriate educational programs for their children, whether in their schools or homes.2 In order to accomplish this goal, Congress granted parents unprecedented substantial procedural due process rights. Among the far-reaching rights that the IDEA affords parents is
an opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child.3
According to the IDEA, the term parent means
(A) a natural, adoptive, or foster parent of a child (unless a foster parent is prohibited by State law from serving as a parent);
(B) a guardian (but not the State if the child is a ward of the State);
(C) an individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or
(D) except as used in sections 1415(b)(2) of this title and 1439(a)(5) of this title, an individual assigned under either of those sections to be a surrogate parent.4
State laws may further refine, or place additional restrictions on, who may be considered to be a parent. For example, the Ninth Circuit held that in California the definition of parent includes a guardian “appointed by the juvenile court to have legal authority for making educational decisions” on behalf of a child.5
The courts recognize the importance Congress placed on parental participation.6 Accordingly, case law makes it clear that school officials must offer parents opportunities to participate meaningfully in the development of Individual Education Programs (IEPs) for their children. In one such case, the Sixth Circuit affirmed the relevant part of an earlier order finding that educators in Tennessee violated the rights of a child and his parents by having predetermined not to offer him intensive applied behavioral analysis.7 However, in a case from Louisiana, the Fifth Circuit clarified that the right to provide meaningful input does not grant parents veto power over the decisions of IEP teams or the right to dictate outcomes.8
At the same time, while courts have not insisted on absolute compliance with the letter of the law regarding parental rights, they have diligently upheld parental rights in the special education process. The courts typically allow school board proposals to stand if procedural violations do not prejudice the process and do not result in a detriment to students, but they do not tolerate egregious violations of parental rights.9
Parental Rights
In order to help achieve the main goal of the IDEA, providing a free appropriate public education (FAPE) to all students with disabilities, Congress included significant parental rights in the statute so that parents could advocate on behalf of their children. Although most of the due process rights in the IDEA are for the benefit of children, the Supreme Court ruled that parents have rights of their own independent of those of their children.10
Since the IDEA grants numerous rights throughout all aspects of the special education process, student and parental rights are inherent in discussions throughout this book. This chapter focuses on the general rights of students and parents such as the right to be notified of school board actions regarding the provision of FAPEs. The chapter also includes an extensive discussion of student and parent rights with regard to school records.
Parental Notification
It almost goes without saying that parents cannot exercise rights of which they are unaware. The IDEA obligates school boards to inform parents fully of their rights once per year.11 In addition, the IDEA directs education officials to notify parents on the initial referrals or their first request for evaluations of their children, on the first occurrence when they file IDEA-related complaints, and when they make such requests.12 The IDEA and its regulations also permit school officials to place notice of the procedural safeguards on their websites.13
Insofar as the failure of school officials to inform parents of their rights has limited parental ability to participate in the education of their children, this has led to significant amounts of litigation. Case law acknowledges that the purpose of notifying parents of their rights is to provide them with sufficient information to protect their rights, allow them to make informed judgments, and fully participate in due process hearings, if necessary.14
The purpose of notifying parents of their rights is to provide them with sufficient information to protect those rights, allow them to make informed judgments, and fully participate in due process hearings, if necessary.
The IDEA’s regulations identify seven key elements that parental notice must contain. Notice must
• Describe the actions that school officials proposed or refused to initiate.
• Explain why officials proposed to or refused to act.
• Describe each evaluation, procedure, assessment, record, and/or report that officials used as bases for their proposed or refused actions.
• Include reminders that parents retain their procedural safeguards along with information about where they may obtain descriptions of those safeguards.
• Identify sources for parents to contact if they need assistance in understanding the contents of notice.
• Describe the other options that officials considered and the reasons why the other options were not pursued.
• Be in a language that is understandable to the general public and in the parents’ native language unless it is otherwise clearly not feasible to do so. If the native language or other mode of parental communication is not a written language, education officials must ensure that notice is translated orally or by other means to parents in their native language or other mode of communication, that the parents understand the notice, and that there is written evidence that educators satisfied these requirements.15
A federal trial court in Illinois declared that a school board’s failure to notify a student’s parents about meetings at which their son’s educational placement was discussed, about their right to review psychological evaluations, and about their right to obtain an independent evaluation violated the IDEA.16 The court found that these procedural violations effectively denied the parents the opportunity to participate in the development of their child’s IEP. In another case, the Fourth Circuit affirmed that the failure of a school board in North Carolina to notify parents of their rights resulted in its failure to provide a FAPE under the standards established by the Supreme Court.17 The lower court had discovered that board officials consistently failed to comply with federal and state statutes requiring them to notify the parents of their rights. The panel reasoned that this failure relegated parental participation to little more than acquiescence to the actions of school officials.
More recently, when an IEP team in Delaware adjourned a conference and reconvened later without providing 10 days’ written notice of the second meeting, the Third Circuit affirmed that the alleged notice violations did not impair parental ability to participate in IEP meetings.18 In a case from Tennessee, the Sixth Circuit decided that school officials did not violate a mother’s rights when they conferred on an assessment report since she participated fully in the IEP process and was actively involved in evaluating her daughter’s eligibility for IDEA services.19
The IDEA’s notice requirements are designed to provide parents with the information necessary to allow them to participate actively in the educational planning process for their children. When parents in the District of Columbia challenged the notice provided by their school board, a federal trial court observed that the notice was statutorily sufficient.20 The court was satisfied that the notices informed parents about the board’s proposed placements for their child and why school officials selected that placement. The court remarked that the information that officials supplied adequately provided the parents with the opportunity to have a meaningful role in the decision-making process and to draw informed conclusions about whether the proposed placement would have conferred an appropriate education on their child. Conversely, the federal trial court in Arizona rejected notice as insufficient because it failed to detail the reasons for a school board’s proposed action.21
Naturally, misleading notice or a failure to provide notice is problematic for school boards. The federal trial court for the District of Columbia maintained that misleading notice violated the procedural rights of parents under the IDEA.22 The court conceded that although school officials notified the parents that they had 15 days to request a due process hearing, this action was inappropriate because the IDEA did not authorize them to impose such a unilateral time limitation. In a case from Texas, the court held that a board’s failure to provide a father with written notice of its refusal to evaluate his child constituted a procedural violation of the IDEA.23
A case from Maryland illustrates the principle that notice must be kept up to date. On discovering that school board officials provided parents with an outdated booklet that did not reflect changes in federal and state law regarding procedural safeguards, the federal trial court decreed that they violated the IDEA.24 The court determined that the fact that the parents’ attorney was aware of those changes did not relieve the board of its obligation to provide them with adequate, up-to-date notice. Figure 4.1 lists the content that notice to parents must include.
Figure 4.1 Required Content of Notice to Parents
• A description of the action(s) that school board officials proposed or refused to initiate
• An explanation of why school board officials proposed to do something or refused to act
• Descriptions of all evaluations, procedures, assessments, records, or reports that school board officials used as bases for their proposed or refused actions
• A reminder that the IDEA protects parents and their children
• Information about where parents may obtain a copy of their procedural safeguards
• A list of sources for parents to contact if they need assistance in understanding the contents of the notice
• A description of the other options that IEP teams considered and reasons why the other options were not pursued
• A description of other relevant factors concerning the actions of refusals to act by school board officials
• A written explanation in the parents’ native language or other mode of communication and in a language that is understandable to the general public or presented orally, if necessary
Parental Consent
School boards must obtain informed consent from parents before school personnel can conduct evaluations to determine if children qualify for special education and prior to providing special education and related services.
The IDEA requires school board officials to obtain informed consent from parents before personnel can conduct evaluations to determine whether children qualify for special education and prior to providing special education and related services.25 If parents refuse or otherwise fail to provide consent for evaluations of their children, and officials believe that evaluations are warranted, educators may use the IDEA’s due process hearing mechanism to seek to override the lack of parental consent unless doing so is inconsistent with state law.26 In this respect, a federal trial court in Texas reasoned that a hearing officer had the authority to override a mother’s refusal to consent to an evaluation of her child for learning disabilities.27 The IDEA does not, though, allow boards to seek overrides of parents’ refusal for services,28 including circumstances when they choose to homeschool their children rather than submit to services.29
Effect of Procedural Errors
Procedural errors by school officials do not necessarily render their recommendations concerning IEPs inappropriate. The Supreme Court, in Board of Education of the Hendrick Hudson Central School District v. Rowley,30 held that in order to be appropriate, IEPs must be developed in accordance with the procedures outlined in the IDEA. Courts examine the effect of violations to evaluate whether, and to what extent, the violations interfere with the development of IEPs for students. If school officials violate the letter of the law but their errors do not interfere with parental participation in the IEP process, courts generally do not invalidate IEPs. If violations prevent active parental participation in the development of IEPs, though, these errors are generally sufficient to have IEPs invalidated.
Egregious disregard for the IDEA’s basic provisions provides courts with sufficient bases to invalidate proposed IEPs.
Egregious disregard for the IDEA’s basic provisions provides courts with sufficient bases to invalidate proposed IEPs. The Fourth Circuit affirmed that a school board in West Virginia that failed both to conduct an annual review of a student’s program as required by law, and to involve his parents in the IEP process, did not provide an appropriate education.31
The Sixth Circuit was of the opinion that strict compliance with the IDEA’s procedural safeguards is the best way to ensure that its substantive provisions are enforced.32 Despite this analysis, the court did not treat the failure of school officials from Ohio to provide the parents with written notice as prejudicial because the mother received adequate oral notice and participated in the IEP conference. Similarly, a federal trial court in New York asserted that a school board’s violation of the letter of the law did not prejudice a student or his parents in any way because the latter were involved in planning and executing their child’s IEP.33 Further, the Eleventh Circuit noted that deficiencies in the notices provided to parents by a board in Alabama that had no impact on their full and effective participation in the IEP process caused no harm.34 In each of these cases, the courts agreed that insofar as the procedural errors did not result in substantive deprivations, they were insufficient to render otherwise appropriate IEPs invalid.
IEP Conferences
IEP conferences provide parents with the best opportunity to participate in the development of appropriate educational programs for their children. At these meetings, team members review evaluation results, develop IEPs, and make placement decisions. Prior to these conferences, parents may have attended meetings to discuss the needs of their children and may have provided information about their youngsters. These earlier meetings aside, most decisions about the future education of students are made at IEP conferences.
As an initial matter, school officials must take steps to ensure that at least one of a student’s parents is present at IEP conferences.35 Further, while officials are required to notify parents about meetings at which the IEPs or placements of their children are to be discussed, this does not mean that they must be notified each and every time school personnel confer. In one such case, the Fifth Circuit affirmed that officials from Texas were not required to notify a child’s parents every time one of his teachers discussed his progress with an administrator.36
Parental participation is meaningless if parents do not understand the proceedings of IEP conferences. School officials should therefore take the necessary steps to ensure that parents understand what is taking place at IEP meetings.
Parental participation is meaningless if parents do not understand the proceedings of IEP conferences. School officials should therefore take the necessary steps to ensure that parents understand what is taking place at IEP meetings. For example, the Second Circuit affirmed the relevant part of an earlier order directing school officials in New York to provide sign language interpreters so that parents who were hearing impaired could participate in meetings and conferences that were important to the education of their non–hearing-impaired children.37 Even though neither of the children in this dispute needed special education services, and the case was resolved under Section 504 of the Rehabilitation Act,38 the legal principles are applicable for IEP meetings.
In helping parents to understand IEP meetings and other proceedings, educators may have to go the proverbial “extra mile.” In two separate cases, the federal trial court in Connecticut concurred that parents had the right to tape-record IEP conferences. In the first suit, the court pointed out that insofar as the child’s mother had limited English proficiency, her request to tape-record the proceedings so that she could better understand and follow them was reasonable.39 In the second case, the court allowed the child’s mother to tape-record the proceedings because she could not take notes due to a disabling hand injury.40 Both courts agreed that insofar as the IDEA’s intent of parental participation meant more than mere presence at IEP conferences, allowing parents to make tape recordings afforded them the opportunities to become active and meaningful participants.
School board officials may also have the right to make records of IEP proceedings. The First Circuit affirmed that educators in New Hampshire had the right to employ a court reporter at an administrative hearing in order to secure a verbatim record of the proceedings.41 Although the nature of an administrative hearing is different from that of an IEP conference, in some situations the need for a verbatim record may exist. In situations such as this, courts are likely to grant boards the right to create verbatim transcripts of meetings.
As indicated, procedural errors can create serious problems for school boards since they may cause courts to enter judgments in favor of parents in disagreements involving IEPs. Yet, as a case from the Sixth Circuit indicated, parents may give up some of their rights by failing to participate in the IEP process.42 Parents from Ohio challenged the adequacy of an IEP because all of the required participants were not present at the IEP conference, but then rejected the board’s offer to convene a properly constituted session. The court remarked that the parents relinquished their right to a procedurally correct IEP conference by rejecting the board’s offer to schedule such a session.
IEP Revisions
From time to time, along with conducting annual and triennial reviews, school officials may need to alter IEPs due to changing circumstances within educational environments or changes in student needs. Minor adjustments not resulting in changes in student placements are of little consequence.
If changes substantially alter IEPs or result in their not being implemented as written, then the IDEA’s procedural protections are triggered. Parents must be notified of changes in the educational placements of their children and must be given opportunities to participate in making these modifications.43 In reviewing IEPs, teams are expected to consider the lack of expected progress toward achieving students’ annual goals, the results of reevaluation information provided to or about students by their parents, their anticipated needs, other matters,44 and/or special factors.45 In addition, IEP meetings must include a child’s regular education teacher.46 Moreover, a change in the IDEA and its regulations permits changes to IEPs to be made by means of video conferences and conference calls.47
Minor adjustments to IEPs that do not result in a change in student placement are of little consequence. Changes that alter IEPs substantially or result in their not being implemented as written trigger the IDEA’s procedural protections.
The District of Columbia Circuit decided that the failure of school board officials to notify a surrogate parent of the curtailment of a student’s instructional program constituted a denial of an appropriate education.48 The student lived in a children’s hospital and was transported to a board facility to receive educational services. The record reflected that educators discontinued the child’s educational program for several months because medical problems prohibited his being transported. However, the court acknowledged that officials did not provide alternative services and that his surrogate parent was never notified that educational services were no longer being provided. In another case, the Third Circuit affirmed that a board from New Jersey did not violate the IDEA when officials modified an IEP as a result of discussions that had taken place pursuant to a rejected IEP, even though they had not followed the normal IEP revision process.49 The court agreed with the earlier order that school officials made the modifications in the spirit of compromise.
Noncustodial Parents
Absent court orders to the contrary, the IDEA’s parental rights apply to parents who do not have custody of their children due to divorce.
In today’s world many students do not live with both parents. As discussed below in the section on privacy and student records, absent court orders to the contrary, the IDEA’s parental rights apply to parents who do not have custody of their children due to divorce. In one such case, the Seventh Circuit ruled that a noncustodial father from Illinois had standing to sue a school board over his son’s IEP.50 Even though the divorce decree gave the custodial mother the right to make educational decisions, the court found that nothing in it stripped the noncustodial father of his parental interest in educational matters.
A case from Texas illustrates how judicial proceedings can alter parental rights. The court thought that a noncustodial father lacked standing to challenge his daughter’s placement because a divorce decree awarded full authority for educational decision making to her mother.51 Earlier, the Second Circuit affirmed that under Vermont law, a noncustodial mother lacked standing to demand a hearing under the IDEA over the appropriateness of her daughter’s IEP evaluation.52 The court posited that the mother lost the right to participate in her daughter’s education in a divorce decree that awarded full custody of the child to her father, who opposed the hearing, on the basis that it was against his daughter’s best interests. A case with similar circumstances, where a father secured the right to make educational decisions for his children, arose in Florida. The Eleventh Circuit affirmed that insofar as the noncustodial mother’s legal relationship to her children was legally terminated, she was not a parent under state law. The court thus concluded that the mother lacked standing to bring suit under the IDEA.53
Another case from the Second Circuit illustrates the importance of state law and the content of orders contained in divorce decrees in determining a noncustodial parent’s rights. The court, reiterating that state law controlled parental rights in divorce situations, certified, to New York’s Court of Appeals for an opinion, the question of whether a noncustodial father retained rights when the divorce decree was silent regarding educational decisions.54 The state’s highest court ascertained that unless an order expressly permitted joint decision-making authority or designated particular authority with respect to a child’s education, a noncustodial parent had no right to control such matters.55 After receiving that guidance, the Second Circuit affirmed that a noncustodial father lacked standing to request a due process hearing to challenge the adequacy of his son’s IEP.56
Adult Students
Many students continue to receive special education services after reaching their 18th birthdays. While these students assume rights of their own on reaching the age of majority, and most of the rights accorded to parents by the IDEA are transferred to the students, their parents do not lose their rights under the IDEA just because their children have reached this milestone.57 Thus, parents are still entitled to notice as to what is taking place with regard to the education of their children even though all other rights associated with the IDEA are transferred to the students. Further, the IDEA requires states to establish procedures for parents or other appropriate individuals to represent the educational interests of students over the age of majority who lack the ability to provide informed consent.58
The Second Circuit reasoned that the IDEA’s procedural safeguards apply to students between the ages of 18 and 21 even if they have not been declared incompetent.59 School officials terminated special education services for a 20-year-old student from Connecticut with his consent but without notifying his mother. The court indicated that the termination of services without parental notification violated the IDEA because the mother was entitled to be informed of the change.
Students who are incarcerated in adult prisons are an important subset of children with disabilities whose rights are addressed in the IDEA. The statute provides that all rights accorded to parents under the IDEA transfer to children who are incarcerated in an adult or juvenile correctional facility.60 Further, if students with disabilities are convicted as adults under state law and incarcerated in adult prisons, IEP teams may modify their IEPs or placements as long as state officials can demonstrate that they cannot otherwise accommodate bona fide security or compelling penological interests.61 State law is important in this regard. For example, in a case from Florida, the Department of Corrections claimed that insofar as a 16-year-old student was incarcerated as an adult, he had the transferred right of majority. The trial court disagreed, clarifying that the rights of majority do not transfer until a child reaches the age of majority under state law.62
Student Records and Privacy
In 1974, a year before enacting the Education of All Handicapped Children Act (the original name of the IDEA), Congress passed the Family Educational Rights and Privacy Act (FERPA),63 also known as the Buckley Amendment after its primary sponsor, then-Senator James Buckley of New York. FERPA, which clarifies the rights of students and their parents with regard to educational records, has two main goals: to grant parents and eligible students, meaning those over 18, access to their educational records and to limit the access of outsiders to these records. FERPA, along with the IDEA and its regulations, has a significant impact on the delivery of special education that applies with equal force to parents64 and eligible students with disabilities. Insofar as parents, rather than special education students, typically exercise the right to access the records of their children, this discussion focuses on parental rights.
Records Covered
FERPA covers “education records” containing personally identifiable information relating to students that are maintained by educational agencies or by persons acting on their behalf.
FERPA covers “education records” containing personally identifiable information relating to students that are maintained by educational agencies or by persons acting on their behalf.65 Since education records may include information about more than one student, parents who review the records of their children can examine only those portions of group data specific to their own children.66
Two cases highlight the importance of safeguarding student records. In the first, the federal trial court in Connecticut wrote that school officials violated the privacy rights of parents by releasing their names and that of their son to a local newspaper following a due process hearing.67 The Eighth Circuit, affirming that public policy favors protection of the privacy of minors where sensitive matters are concerned, upheld an order from a federal trial court in Missouri that judicial proceedings under the IDEA can be closed to the public.68 The court pointed out that the IDEA restricts the release of information about students with disabilities without parental permission. In order to safeguard the information at issue while preventing the stigmatization of the student, the court declared that access to the courtroom could be restricted and the files sealed.
Another form of records that school systems preserve is so-called directory information, which includes each child’s
name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, degrees and awards received, and the most recent previous educational agency or institution attended by the student.69
Before school officials can release directory information about current students, they must provide the students’ parents with notice of the categories of records that are designated as directory and afford parents a reasonable time to request that the material not be released without their consent.70 Insofar as the disclosure provisions relating to directory information do not apply to former students, officials can release such data without obtaining any prior approvals.71
At the same time, FERPA requires school officials to notify parents of their annual right to inspect and review, request amendment of, and consent to disclosure of educational records as well as to file complaints with the federal Department of Education alleging failures to comply with the statute’s dictates.72 Typically, parents receive a single notice by a means that is reasonably likely to inform them of their rights, such as on school websites, in school newsletters, student handbooks, notes home, local access TV, e-mail, or some other method or combination of means designed to ensure that they receive notice.
The comprehensiveness of FERPA aside, four major exceptions mean that a variety of documents are not classified as educational records73 subject to the act’s mandatory disclosure provisions.
• First, records made by educational personnel that are in the sole possession of their makers and are not accessible by or revealed to other persons, except temporary substitutes, are not subject to release.74
• Second, records kept separately by law enforcement units of educational agencies that are used only for their own purposes cannot be accessed by third parties.75
• Third, records that are made in the ordinary course of events relating to individuals who work at, but who do not attend, educational institutions, and that refer exclusively to their capacity as employees and are not available for any other purpose are not subject to disclosure.76
• Fourth, records relating to students who are 18 years of age or older, or who attend postsecondary educational institutions, that are made by physicians, psychiatrists, psychologists, or other professionals or paraprofessionals for use in their treatment and are not available to others, except at the request of the students, cannot be released.77
Access Rights
As noted, pursuant to FERPA, parents have the right to inspect and review records containing personally identifiable information relating to the education of their children.78 It is important to recognize that absent court orders or applicable state law, FERPA grants noncustodial parents the same right of access to educational records as custodial parents.79 When court orders are in effect or if state laws prohibit disclosure to noncustodial parents, school officials would be wise to consider keeping files in two separate locations. Put another way, in order to avoid the risk of mistakenly granting access to noncustodial parents or their representatives, educators should place essentially blank files in the main set of student records directing individuals who need to see them to a second, more secure location. Along with access rights, FERPA requires school officials to provide parents with reasonable interpretations and explanations of information contained in the records of their children.80
Under FERPA, parental permission or consent is transferred to eligible students who reach their 18th birthday or who attend postsecondary institutions.81 In an important exception relating to special education, school officials can take the age and types or severity of students’ disabilities into account when considering whether to grant rights of access.82 Other restrictions of interest are that postsecondary institutions do not have to permit students to inspect financial records in their files that include information about the resources of their parents83 or letters of recommendation where they waived their rights of access,84 typically by checking off such an item on a recommendation form. Further, school officials are not required to grant access to records pertaining to individuals who never were students at their institutions.85
Third parties generally can access school records, other than directory information, only if parents or qualified students provide written consent.
Third parties generally can access school records, other than directory information, only if parents or qualified students provide written consent.86 In order to assist in the smooth operation of schools, especially as officials in different systems interact with one another, FERPA contains eleven major exceptions where permission is not required before officials can review educational records.
• First, school employees with legitimate educational interests can access student records;87 for example, at the end of a school year, or over a summer, a third grade teacher can read the records of second grade children who will be in her class in the fall in order to prepare classes and other lessons. However, the teacher would be unlikely to have a legitimate need to see the files of children entering fifth grade, because she would not be instructing or interacting with them in an official capacity.
• Second, officials representing schools to which students applied for admission can access their records as long as parents receive proper notice that the information has been sent to the receiving institutions.88
• Third, authorized representatives of the U.S. comptroller general, the secretary of the Department of Education, and state and local education officials who are authorized to do so by state law can view student records for law enforcement purposes.89
• Fourth, persons who are responsible for evaluating the eligibility of students for financial aid can review appropriate educational records.90
• Fifth, members of organizations conducting studies on behalf of educational agencies or institutions developing predictive tests or administering aid programs and improving instruction can view records as long as doing so does not lead to the release of personal information about students.91
• Sixth, individuals acting in the course of their duties for accrediting organizations can review student records.92
• Seventh, parents of dependent children can access student records pertaining to their own children.93
• Eighth, in emergency situations, persons who protect the health and safety of students or other persons can view records.94
• Ninth, written permission is not necessary if records are subpoenaed or otherwise sought via judicial orders, but the parents or qualified students must be notified in advance of compliance by school boards.95 Even so, prior to ordering the release of information, courts weigh the need for access against the privacy interests of students.
• Tenth, when conducting program monitoring, evaluations, and performance measurements of agencies and institutions receiving federal funding for school lunch programs, the secretary of agriculture, authorized representatives, or contractors acting on behalf of the food and nutrition service can access records when the results are reported in an aggregate form that does not identify any individual. Any data collected for this purpose must be protected such that it does not permit the personal identification of students and their parents by other than authorized representatives of the secretary. Further, personally identifiable data must be destroyed when the information is no longer needed.96
• Eleventh, caseworkers or other representatives of specified child welfare agencies who have a right to access case plans for children in their care can access the education records or the personally identifiable information contained in such records. Caseworkers may not disclose information except to individuals or entities engaged in addressing the education needs of the students and are authorized to receive such disclosures, consistent with applicable law protecting the confidentiality of the education records of the students.97
FERPA adds that its provisions do not prohibit education officials from disclosing information concerning registered sex offenders who are required to register by federal law. Of course, in any of these situations, education officials cannot release or quote any personally identifiable information relating to students without parental consent.
A third party seeking disclosure of student records must have written consent from parents or qualified students specifying the record(s) to be released, the reason(s) for the proposed release, and to whom the information is to be given.98 FERPA further specifies that parents or qualified students have the right to receive copies of the materials to be released.99 In addition, school officials must keep records of all individuals or groups, except exempted parties, who request or obtain access to student records.100 These records must not only explain the legitimate interests of those who were granted access to the educational files but must also be kept with the records of the student in question.101
Educational agencies that maintain student records must comply with requests for review without unnecessary delay. More specifically, unless parents or qualified students agree otherwise, officials must grant them access no later than 45 days after receiving their requests.102 Needless to say, nothing prohibits school officials from granting parental requests for access to student records more quickly. Agencies that receive requests for access to records cannot charge fees to search for or to retrieve student records.103 Once materials are located, officials can charge parents or qualified students for copies as long as a payment does not effectively prevent them from exercising their rights to inspect and review the educational records at issue.104
Amending Records
Parents or qualified students who disagree with the content of educational records can ask school officials to amend the disputed information.
Parents or qualified students who disagree with the content of the educational records can ask school officials to amend the disputed information.105 If officials refuse to grant requests to amend records within a reasonable time,106 parents or qualified students are entitled to hearings at which hearing officers evaluate whether the challenged material is accurate and appropriately contained within the disputed educational records.107 Hearing officers must both conduct hearings and render decisions within a reasonable time.108 If hearing officers are convinced that contested material is inaccurate or misleading, or if it otherwise violates the rights of students to privacy, school officials must amend the contested material accordingly and inform qualified students or their parents in writing that this has been done.109 In contrast, if hearing officers are satisfied that the materials in educational records are not inaccurate or misleading, or do not otherwise violate students’ privacy rights, the records need not be removed or amended.110 Parents or qualified students who remain concerned over the content of the educational records at issue, even after hearing officers decide that they are acceptable, can add statements explaining their objections to the records. These statements must be kept with the contested information for as long as the records are kept on file.111
Destruction of Records
The number of records in the files of students who are in special education placements can multiply rapidly. Accordingly, it should not be surprising that the IDEA’s regulations discuss the destruction of information that is no longer needed. Although neither the IDEA nor its regulations define the term, the latter indicate that records can be destroyed when they are no longer needed to provide children with services.112 This could include, but is not limited to, outdated IEPs and test protocols. The regulation adds that parents or qualified students must be advised that records are going to be destroyed and that school officials can save, without any time limitation, records including students’ names, addresses, phone numbers, grades, attendance records, classes attended, and grade levels completed along with the years they were completed.113
Enforcement
If parents or qualified students are denied the opportunity to review the records they seek or if information is released impermissibly (as in the case of students who are over the age of 18 in postsecondary institutions), the education officials who denied appropriate access or granted inappropriate access can be charged with violating FERPA, thereby triggering its enforcement provisions. As the Supreme Court ruled in Gonzaga University v. Doe,114 admittedly a case from higher education, an aggrieved party must file a written complaint detailing the specifics of an alleged violation with the federal Department of Education’s Family Policy Compliance Office (FPCO).115
Complaints must be filed within 180 days of either alleged violations or the dates when claimants knew or reasonably should have known about violations.116 When the FPCO receives complaints, its staff must notify officials at the educational institution in writing, detailing the substance of the alleged violations and asking them to respond before considering whether to proceed with investigations.117 If, after investigations118 are completed, the FPCO staff agrees that violations occurred, the Department of Education can withhold future payments under its programs, issue orders to compel compliance, or ultimately terminate an institution’s eligibility to receive federal funding if officials refuse to comply within a reasonable time,119 a draconian solution that has yet to occur.
In the only other Supreme Court case involving FERPA in a K–12 context, Owasso Independent School District v. Falvo,120 the Court held that insofar as “peer grading,” whereby teachers permit students to grade the papers of classmates, does not turn the papers into educational records covered by FERPA, a school board in Oklahoma did not violate the law by permitting teachers to use the practice over the objection of a mother whose children attended schools in the district.121 The Court explained that student papers do not become educational records within the meaning of FERPA until such time as they are entered into the grade books of teachers.
Frequently Asked Questions
Q: What rights do noncustodial parents have in the IEP process?
A: Absent court orders or state law to the contrary, noncustodial parents retain all of the rights of custodial parents. This is true even if noncustodial parents do not live within a school district’s boundaries. Thus, noncustodial parents have the right to challenge proposed IEPs. However, as the answer to this question is very much affected by state law, school administrators must consult the requirements of state law. For example, state law may specify how noncustodial parents are to be notified of IEP meetings and may require custodial parents to be notified whenever noncustodial parents request information.
Q: Do parents lose all of their rights under the IDEA when their children reach the age of majority?
A: Although most of the rights accorded to parents under the IDEA transfer to the students when they reach the age of majority, school boards must continue to provide notice to the parents as well as the students. In other words, parents must be kept informed. Further, states are required to establish procedures for appointing parents or other responsible individuals to represent the interests of students who have reached the age of majority but lack the ability to provide informed consent. State law may also dictate who can represent children over the age of majority who have been declared legally incompetent.
Q: If parents or qualified students disagree with material in disputed school records, can they insist that it be removed?
A: No. Parents or qualified students are entitled to proceedings at which hearing officers can consider whether the challenged materials are inaccurate and/or inappropriate for school records. If hearing officers decide in favor of parents or qualified students, the records must be amended. Conversely, if hearing officers agree with school officials that the materials are accurate and appropriately placed in the records, the parents or qualified students may add statements to the files explaining their objections; these statements must be preserved for as long as the records are maintained
Q. I was told that I cannot look at the records of former students to see how they are doing. As a teacher at their school, am I not entitled to see their records?
A. No. Under FERPA only school personnel who have legitimate educational reasons to access student records may do so. Although their desire to see the records may be well intentioned, teachers usually do not have a need to know what is contained in the records of former students. A desire to follow students to see how they are doing is not a sufficient reason to access their records. There are exceptions to when teachers may look at records of former students, but these exist only when educators have legitimate reasons for viewing the files. For instance, when teachers are asked to write recommendations for former students, they may consult students’ records for information needed to write these letters.
Recommendations
The IDEA and its regulations provide students with disabilities and their parents with specific procedural rights. Those rights are included in the statute because Congress intended parents to be equal partners with school officials in the development of appropriate educational programs for their children. The Supreme Court reasoned that in enacting the IDEA, Congress was well aware that school boards had all too often denied students with disabilities an appropriate education, without consulting their parents.122 In order to remedy situations relating to children with disabilities, Congress emphasized the importance and necessity of parental participation throughout the IDEA. To this end, school officials should
• Periodically review all notices to parents to make sure that they are up-to-date and comply with current federal and state laws.
• Guarantee parental input into the evaluation and placement process through frequent communication with parents even if this requires home visits.
• Ensure parental participation in the IEP development process by making reasonable attempts to schedule IEP meetings at times that are convenient for parents and investigate alternative means for parental attendance at IEP meetings, such as telephone or video conferencing, when parents cannot attend in person.
• Listen to, discuss, and give due consideration to all parental concerns and suggestions.
• Provide parents with interpreters for IEP meetings and any progress conferences if their primary mode of communication is not English.
• Allow parents to tape-record IEP meetings if doing so will assist them in participating in the process.
• Consistent with state law, remind noncustodial parents of their rights with respect to the IEP process. Transfer rights given to parents by the IDEA to students when they reach the age of majority but continue to provide notice to parents; notify parents when rights are being transferred.
• Take all necessary steps to protect the privacy of special education students.
• Be diligent in ensuring that parents are afforded all of the rights and protections that they are guaranteed by the IDEA.
• Provide hearings for parents or qualified students who object to the contents of educational records.
• Amend records that are shown to be inaccurate or misleading.
• Allow parents or qualified students to include statements in the records explaining their concerns when records are not amended.
Dispute Resolution
Key Concepts in This Chapter
• Mediation and Resolution Sessions
• Administrative Due Process Hearings
• Judicial Review and Court Proceedings
• Statutes of Limitations
• Cases Decided Under Other Statutes
As discussed throughout this book, the Individuals with Disabilities Education Act (IDEA)1 is designed to afford parents and school officials opportunities to work together to develop individualized educational programs (IEPs) for students with disabilities. Yet, in recognizing that parents and educators may not agree in all situations, Congress included dispute resolution provisions in the IDEA.2
Parents of students with disabilities may request mediation3 or due process hearings4 if they disagree with the actions of school board officials regarding proposed IEPs or the provision of a free appropriate public education (FAPE) for their children. After having exhausted administrative remedies, parents may request judicial review in federal or state courts.5 Courts can waive the exhaustion requirement only when it clearly is futile to pursue additional administrative remedies.6 Students must remain in their then-current, or pendant, placements while administrative or judicial actions are pending unless school officials and parents agree to other arrangements,7 hearing officers order changes,8 or judicial decrees call for new placements.9
In Board of Education of the Hendrick Hudson Central School District v. Rowley, the Supreme Court cautioned judges not “to substitute their own notions of sound educational policy for those of the authorities which they review” (p. 206).
The IDEA empowers the judiciary to review the records of administrative proceedings, hear additional evidence, and “grant such relief as the court determines is appropriate”10 based on the preponderance of the evidence standard.11 Still, in Board of Education of the Hendrick Hudson Central School District v. Rowley, the Supreme Court cautioned judges not “to substitute their own notions of sound educational policy for those of the authorities which they review.”12
Mediation
In order to provide parents with an alternative dispute mechanism to remedy their complaints in disputes over the placements of their children, the IDEA13 and its regulations direct states and school officials to offer mediation, at public expense,14 as an option when due process hearings may be possible. To date, these provisions have been subject to little litigation.
The IDEA specifies that mediation must be voluntary on the part of the parties; cannot be used to deny or delay parental rights to due process hearings or to deny any other rights under the IDEA; and must be conducted by trained, qualified, impartial mediators15 whose names are on state-maintained lists of qualified mediators in special education.16
Mediators can neither be employees of states, school boards, or other agencies that provide direct services to students who are subject to the mediation process nor can they have personal or professional conflicts of interest.17 Individuals who otherwise qualify as mediators are not considered employees of states or boards solely by virtue of being paid to serve as mediators.18
Mediation sessions must be scheduled in a timely manner in locations convenient to the parties.19 Agreements that the parties reach as a result of mediation must be formalized in writing.20 Discussions occurring during mediation must be kept confidential and cannot be used as evidence in subsequent due process hearings or civil proceedings; the parties may also be required to sign confidentiality pledges prior to the commencement of such processes.21 Further, a regulatory subsection makes it clear that the results of mediation agreements can be enforced in federal or state courts.22
Insofar as the mediation process is voluntary, if parents choose not to participate in such sessions, states may establish procedures allowing them to meet at convenient times and locations with disinterested third parties who are under contract with parent training and information centers, community parent resource centers, or appropriate alternative dispute resolution entities to encourage the use of, and explain the benefits of, the process.23
Resolution Sessions
The IDEA24 requires school board officials to convene meetings between parents and relevant members of the IEP teams of their children25 within 15 days of parental requests for due process hearings in an attempt to resolve placement disputes.26 If educators do not convene requested resolution sessions within 15 days, parents can seek the intervention of hearing officers to begin this process.27 In such a case, the federal trial court in Delaware did not render a school board liable for failing to schedule a resolution session within the required 15-day period because the delay was not its fault.28
Resolution sessions must include a school board representative with decision-making authority on its behalf29 but may not include board attorneys unless parents are also accompanied by counsel.30 However, if school officials are unable to get parents to participate in resolution sessions within a 30-day period, and can document their reasonable efforts to secure parental participation, hearing officers can dismiss the parents’ complaints.31 The parties need not attend resolution sessions if they agree, in writing, to waive their meetings or agree to mediation.32 An order of the federal trial court in the District of Columbia emphasizes that parties can forego resolution sessions only by mutual consent.33 Parents cannot insist that boards bypass this step if officials are willing to conduct resolution meetings.
If parties do not resolve their disputes within 30 days, they should schedule due process hearings34 at which evidence from resolution sessions can be introduced.35 If the parties do resolve their differences at resolution sessions, they must execute and sign legally binding settlement agreements.36 Settlement agreements are enforceable in state or federal courts, but either party may void such agreements within three business days.37
Due Process Hearings
Pursuant to the IDEA, parents have the right to request due process hearings on any matters concerning the delivery of a FAPE to their children, including identification, evaluation, and placement.38 School board officials may ask for hearings if parents refuse to consent to evaluations39 and must provide parents with proper notice of their rights when school personnel make requests to evaluate their children.40 Of course, as noted, while administrative or judicial actions are pending, students must remain in their then-current placements unless parents and school officials agree to other settings,41 hearing officers order changes,42 or judicial decrees mandate changes in placements.43
Parents have the option of choosing whether to have their children present at hearings44 and whether hearings should be open to the public.45 If officials cannot identify parents, their whereabouts cannot be discovered, or children are wards of the state, they have the authority to appoint surrogate parents to safeguard the educational interests of children.46 Surrogate parents are authorized to represent children in all matters related to the receipt of FAPEs,47 including requesting hearings. The IDEA’s regulations explain that the appointing agency must ensure that surrogate parents are not employees of school boards or state educational agencies, cannot have personal or professional conflicts of interest with regard to the interest of the children involved, and have the knowledge and skill to act in this capacity.48 State laws and regulations govern other qualifications for surrogate parents.
Parties filing due process complaints must forward copies of them to their state education agencies.49 Complaints must include the names and addresses of the children, their schools, and, if children are homeless, available contact information. In addition, complaints must include descriptions of the nature of the problems relating to the proposed or refused initiations or changes in the placements of the children, including facts relating to the problems and proposed resolutions to the extent known and available to the parties.50
One of the IDEA’s regulations indicates that due process hearings cannot take place until one of the parties, or its attorney, files a sufficient complaint.51 Complaints are to be deemed sufficient unless the parties receiving them notify the hearing officer and the other party in writing, within 15 days of receipt of the complaints, that they are insufficient.52 Within five days of receipt of such responses, hearing officers must evaluate whether complaints are sufficient on their face and must immediately notify the parties of their decisions.53
Parties may amend due process complaints only if the opposing parties consent in writing and are given the opportunity to resolve the underlying disputes through resolution sessions, or if hearing officers grant permission to make the changes no later than five days before hearings begin.54 If parties file amended complaints, the timelines for the resolution sessions to resolve the dispute begin anew.55
Assuming, as is almost always the case, that parents requested due process hearings, school officials must respond within 10 days of receiving complaints. Responses must include explanations of why officials proposed or refused to take the actions raised in the complaints; a description of other options that IEP teams considered and the reasons why they were rejected; a description of each evaluation procedure, assessment, record, or report they relied on as the basis for the proposed or refused actions; and a description of the other factors that were relevant to the proposed or refused actions. The regulations add that responses cannot be interpreted as precluding board officials from asserting, if appropriate, that parental due process complaints are insufficient.56
Depending on the law in given jurisdictions, either state-level or local school boards may conduct due process hearings.57 If local boards conduct initial hearings, either party may initiate state-level appeals.58 States are free to establish either one- or two-tiered administrative due process mechanisms. While procedures vary from one state to the next, most jurisdictions have created two-tiered systems that begin with hearings in front of individual hearing officers and provide for appeals to review panels. In two-tiered systems, both procedures cannot be at the state level.59
In jurisdictions with two-tiered administrative hearing systems, some courts agreed that appeals heard by the head of state educational agencies failed to meet the IDEA’s impartiality requirements. For example, the Third Circuit ruled that Pennsylvania’s Secretary of Education was not an impartial third party decision maker.60 Earlier, the same court maintained that employees of the Delaware Department of Public Instruction were forbidden to serve as state-level review officers.61 Similarly, courts in New York agreed that the state commissioner of education lacked impartiality.62 Yet, a state court in New York decided that review officers who were appointed to oversee adjudications of local hearing officers were impartial even though they were subordinate to the commissioner.63
The IDEA mandates that parties must request hearings within two years of the date they knew or should have known of the action forming the basis of their complaint.64 At the same time, if state laws create other limitation periods, they prevail.65 Moreover, the federal timeline is to be stayed if parents can show that school officials misrepresented that they resolved the problems or if they withheld pertinent information from parents.66 Once final administrative orders are rendered, parties have 90 days to appeal to state or federal courts.67
Subject Matter of Hearings
Parents can request due process hearings on matters relating to the education of their children with disabilities.68 For instance, parents have the right to ask for hearings if school officials refuse to assess whether their children have disabilities,69 if they disagree with findings or recommendation offered by school officials,70 or if they are dissatisfied with the content or implementation of the IEPs of their children.71 In a novel defense, a school board in California claimed that parents lacked an entitlement to a due process hearing because officials had not refused to provide services, but rather had ignored their daughter’s disabilities. The Ninth Circuit was not convinced, emphasizing that parents may raise complaints with respect to matters relating to the identification, evaluation, or educational placement of their children.72 State laws and regulations may provide parents with additional rights over the content and structure of due process hearings.
School officials may, but are not required to, request due process hearings to pursue initial evaluations, if appropriate, when parents fail or refuse to respond to requests to provide consent for initial evaluations, except to the extent that requesting hearings for this purpose would be inconsistent with state laws relating to parental consent.73 If officials choose not to pursue evaluations under the circumstances, parents may not accuse them of violating their duties under the IDEA.74 School officials can request hearings if parents refuse to consent to evaluations,75 but not if parents refuse to consent to the provision of services for their children.76
Another circumstance under which parents can request due process hearings is after the eligibility of their children to receive special education expires because students may be entitled to compensatory educational services if courts agree that they were denied a FAPE. In a case of this type, the Supreme Court of Ohio reasoned that a student was entitled to a hearing even though the request for it was submitted one day before his eligibility for special education services expired under state law.77 The record reflected that board officials objected to the hearing, since the student was no longer eligible for services. Reversing in favor of the student, the court disagreed, reasoning that insofar as it was possible to award compensatory services to children who were denied an appropriate education, he was entitled to the hearing.
Parties requesting IDEA due process hearings are precluded from raising issues that were not included in the complaints that they filed to initiate the proceedings, unless the other parties agree otherwise.78
Impartiality of Hearing Officers
Hearing officers, typically selected pursuant to provisions in state law,79 must be impartial, meaning that they cannot be employees of the states or boards involved in the education of the children whose cases appear before them or have personal or professional interests in these students.80 Individuals who otherwise qualify as hearing officers are not considered employees of states or local boards solely by virtue of being paid to serve in this capacity.81 State education agencies are required to keep lists of qualified hearing officers along with descriptions of their qualifications.82
Hearing officers who are employed by other school boards are not automatically rendered ineligible or regarded as biased. In a representative challenge to the impartiality of a hearing officer from Utah, the Tenth Circuit reiterated the rule that an officer’s being employed by another board did not violate the IDEA’s prohibition against working for the system involved in a hearing.83 Moreover, the court confirmed that a hearing officer must not have any personal or professional interest that would conflict with his or her objectivity.
The fact that hearing officers may have personal relationships with individuals who have interests in cases they hear, by itself, does not establish bias. Parents in New York unsuccessfully challenged the impartiality of a state review officer based on his domestic situation. A federal trial court was satisfied that there was no evidence of bias even though the hearing officer cohabited with an employee of the state education agency who had some involvement in special education matters.84 Further, the court was unconvinced that statistical evidence indicating that the officer entered adjudications in favor of school boards in a majority of cases was sufficient to establish bias.85 By the same token, in a case arising in Pennsylvania, the Third Circuit affirmed that a hearing officer who was a former coworker of the school board’s attorney and a current coworker of that attorney’s wife was not biased.86 Similarly, the federal trial court in Hawaii found that a hearing officer’s having formerly served as a deputy state attorney general and having been a coworker of the attorney representing the education department at the hearing did not give the appearance of bias.87
Authority of Hearing Officers
In due process hearings, hearing officers must sort out what took place and apply the law to the facts in a manner similar to that of trial court judges. Like judges, hearing officers are empowered to issue orders, grant equitable relief regarding the provision of a FAPE for students with disabilities, and have immunity for their official acts.88
There are limitations on the power of hearing officers. Hearing officers generally lack the authority to mandate remedies when broad policies or procedures that affect a large number of students are challenged or to address matters of law because they are not empowered to consider the constitutionality of statutes or regulations. Rather, the power of hearing officers is limited to the facts of the disputes at hand. For example, the Ninth Circuit noted that a hearing officer in Oregon lacked the power to address the legislature’s failure to appropriate sufficient funds for special education programs.89 Along the same line, a federal trial court in Indiana declared that a hearing officer did not have the authority to rule on the legality of a state-required application review process for students who needed residential placements or to provide a remedy.90 In addition, the IDEA limits the awarding of attorney fees to prevailing parents in special education disputes to the discretion of federal courts.91
Training of Hearing Officers
As noted, the IDEA and its regulations require hearing officers to be impartial and have no personal or professional interest in the outcome of the disputes before them.92 However, since these provisions do not contain specific language regarding the other qualifications of hearing officers, these criteria are left up to the states to establish. In one of the few cases on point, the federal trial court in Connecticut decided that the failure of state officials to train hearing officers was not a violation of the IDEA.93
Burden of Proof
Since the IDEA and its regulations are silent as to which party bears the burden of proof in due process hearings, such determinations were historically based on state laws or judicial discretion, leading to a great deal of disagreement, and inconsistency, over this important question. In 2005 the Supreme Court resolved the controversy over who had the burden of proof in Schaffer v. Weast (Schaffer).94 In conceding that arguments could be made on both sides of the issue, the Court saw no reason to depart from the usual rule that the party seeking relief bears the burden of persuasion. In IDEA cases, this is generally the parents.95 The issue was important because the assignment of the burden of proof can well determine the final outcome in close cases.96 Under the Court’s rationale, parents who challenge proposed IEPs must demonstrate that the plans are deficient unless state laws provide otherwise.97 Citing Schaffer, the Ninth Circuit affirmed that parents from Oregon, as the party objecting to a proposed IEP, bore the burden of proof at an administrative hearing.98
Exhaustion of Administrative Remedies
The IDEA requires parties to exhaust administrative remedies before filing suit unless it clearly is futile to do so.
Based on Congressional desire for reasonably quick resolution of disputes over the placements of students with disabilities, the IDEA requires parties to exhaust administrative remedies before filing suits unless it clearly is futile to do so.99 Exhaustion of administrative remedies may be excused if school officials either deny parental requests for due process hearings or frustrate parental attempts to challenge the results of hearings,100 or if it is impossible for parents to obtain adequate relief through hearings.101
Exhaustion is not required to enforce final administrative orders, except that these cases must be filed under the Civil Rights Act of 1871, Section 1983 (Section 1983),102 a statute that is discussed later in this chapter. Put another way, as reviewed in the next section, because parties may not file suit until administrative appeals are pursued, courts refuse to address issues that were not subject to complete exhaustion.103
Exhaustion Required
Courts have long refused to hear special education cases where the parties bringing suit have not exhausted administrative remedies.104 Exhaustion is required for a variety of reasons. By way of illustration, since judges consider themselves generalists when reviewing the educational needs of students with disabilities and hearing officers are more experienced in these matters,105 jurists want to be able to review complete records that have been developed by professionals with competence in this complex area of the law. In one dispute from New York, where a student sought damages over a board’s alleged failure to provide IDEA services, the Second Circuit determined that this did not entitle her to sidestep the exhaustion requirement, because the real problem was the lack of specificity in her IEP rather than the board’s failure to comply with its content.106
Most courts treat class action suits, wherein one person or a small group of individuals files a case on behalf of a larger group of similarly aggrieved individuals challenging policies and/or procedures with widespread application, as being subject to the exhaustion requirements.107 One court went so far as to declare that all members of a class had to exhaust administrative remedies prior to bringing suit.108 Other courts have pointed out that filing representative claims served the purposes of exhaustion.109
The Tenth Circuit, in a case from Colorado, asserted that the issue of whether a state’s policies denied students with disabilities a FAPE entailed a factually intensive inquiry into the circumstances of their cases and was the type of issue the administrative process was designed to address.110 A federal trial court in Indiana reached a different result in ruling that plaintiffs representing a class need not exhaust administrative remedies because class action administrative hearings are not permitted.111
Insofar as litigants must exhaust administrative remedies, parties cannot file suit based on issues that have not already been addressed at due process hearings. In this regard, the Second Circuit was of the opinion that a student’s attorney could not claim on his request for compensatory education that a school board in Connecticut committed procedural violations since the issue had not been raised at a due process hearing.112 A federal court in New York also explained that parents could not raise the issue of the appropriateness of an evaluation facility because they failed to challenge the hearing officer’s recommendation on the issue in the presence of a state-level review officer.113
Parties must exhaust administrative remedies when claims are made under statutes other than the IDEA,114 when classroom procedures are challenged,115 or when seeking enforcement of administrative orders if state regulations provide for this through the administrative process.116 Courts have been insistent that parents cannot circumvent the IDEA’s process by raising claims under statutes such as Section 504 of the Rehabilitation Act (Section 504)117 that could be resolved via an IDEA administrative hearing. For instance, a federal trial court in Ohio decreed that parents could not avoid the exhaustion requirement by stating claims under Section 504 or Section 1983 if the claims were actionable under the IDEA.118
Exhaustion Not Required
Courts generally agree that parents are not required to exhaust administrative remedies under a variety of circumstances.119 For example, suits in which parents seek damages for common law torts are generally not subject to the IDEA’s exhaustion requirement, even when they arise in a special education situation.120
Courts excuse parents from exhausting administrative remedies when they can show that school board officials effectively prevented them from exercising their rights by not providing them with obligatory due process. In the first of three cases on point, the Ninth Circuit agreed that parents from Oregon were able to skip a due process hearing when their complaint was that they were denied access to that process.121 In the second, the federal trial court in Arizona indicated that exhaustion would have been futile where a parent claimed that she was denied meaningful access to the IDEA’s due process procedures.122 In the final case, a federal trial court in New York excused parents from the exhaustion requirement because school board officials failed to provide notice of their procedural rights.123
Parties may also not be required to exhaust administrative remedies when complaints allege systemic failures. In a case from New York, the Second Circuit acknowledged that a school board’s alleged failure to prepare and implement IEPs, notify parents of meetings, provide parents with required progress reports, perform timely evaluations, provide adequate procedural safeguards, carry out their required responsibilities in a timely fashion, and offer appropriate training for staff members were systemic failures that could not be remedied through the administrative hearing process.124
Challenges to school board policies that could violate the IDEA may not be subject to the administrative process.125 As such, the Ninth Circuit was convinced that a claim that the school day for specified special education students in California was shorter than for regular education pupils was not subject to the exhaustion requirement because it had nothing to do with individual IEPs.126 The federal trial court in the District of Columbia was satisfied that parents who filed a class action suit alleging that school board officials failed to discharge their child find obligations did not need to first seek a hearing on the matter because the claim challenged policies, patterns, and practices causing a systemic failure to comply with the IDEA.127
Courts have considered exhaustion to be futile when hearing officers lacked authority to grant the requested relief. The Eighth Circuit affirmed that parents seeking an order to prevent the closing of a state-operated school for students with hearing impairments in South Dakota were excused from exhausting administrative remedies since they could not obtain adequate relief through that process.128 The Second Circuit observed that a father’s complaint about the method by which hearing officers were selected in New York was not subject to exhaustion since a sole hearing officer lacked the authority to alter the procedure.129 Federal trial courts in New York agreed that exhaustion was unnecessary in two cases: In the first, where parents sought to have their son placed in a school that was not on the state’s list of approved placements, the court rejected exhaustion as unnecessary because the hearing officer could not order a student to attend classes in an unapproved facility.130 In the second, the court viewed exhaustion as unnecessary because parents were challenging an adjudication of officials of the state education department who rejected their specific request and who also declined to make an exception to general procedures.131
Previous sections of this chapter discussed cases wherein courts subjected class action suits to the exhaustion of remedies requirement. Yet, since courts agree, exhaustion may not be necessary in class action suits where the claims of plaintiffs are systemic in nature and hearing officers would not have the authority to order relief. In such a case, the Second Circuit remarked that exhaustion was not required when a hearing officer in New York could not order a systemwide change to correct the alleged wrongs.132
Exhaustion may be unnecessary in emergency situations if it would cause severe or irreparable harms to students.133 Nevertheless, in a case from New Jersey, the Third Circuit specified that insofar as mere allegations of irreparable harm are insufficient to excuse exhaustion, a plaintiff must present actual evidence to support such a claim.134 The Ninth Circuit affirmed that parents who were seeking an injunction to prevent the Hawaii Department of Education from shortening the school year were excused from the exhaustion requirement since the administrative process could not remedy the alleged harm to the affected students.135
When litigation involves issues that are purely legal, rather than factual, exhaustion may not be required.136 Similarly, exhaustion may not be necessary if state officials persistently fail to render expeditious orders regarding the educational placements of students.137
Courts may not allow parents to circumvent the exhaustion requirement by filing suits under other statutes, but courts do not necessarily insist on exhaustion when parents’ claims are noneducational.138 In a case resolved by an en banc panel, the Ninth Circuit decided that a mother from Washington who sought general damages for her child’s suffering, along with punitive damages, was not required to exhaust administrative remedies.139 The court reasoned that the IDEA’s exhaustion requirement is not jurisdictional, but rather, is a mechanism for claims processing that defendants may offer as an affirmative defense. Thus, the court determined that the IDEA’s exhaustion provision applies only in cases where the relief sought by a plaintiff in the pleadings is available under the IDEA. Non-IDEA claims in which parties are not seeking relief under the IDEA are excused from the exhaustion requirement even if they allege injuries that could conceivably have been redressed by the IDEA. The court stated that the IDEA requires exhaustion of remedies only when the civil action brought under other statutes seeks relief that is also available under the IDEA. In such a situation the court observed that parents and students must exhaust the remedies available under the IDEA before seeking the same relief under other laws.
The Ninth Circuit asserted that the IDEA requires exhaustion in three situations: when plaintiffs seek IDEA remedies or their functional equivalents, when plaintiffs seek prospective injunctive relief to alter IEPs or the educational placement of students with disabilities, and when plaintiffs seek to enforce rights arising as a result of denials of FAPEs, whether pled as IDEA claims or other charges that rely on the denial of FAPEs to provide the bases for causes of action. According to the court, if the measure of a plaintiff’s damages is the cost of counseling, tutoring, or private schooling, relief that is available under the IDEA, then the IDEA requires exhaustion. In other words, to the extent that a request for monetary damages functions as a substitute for relief under the IDEA, a plaintiff cannot escape the exhaustion requirement simply by limiting the request for relief to damages. However, to the extent that a plaintiff has laid out a plausible claim for damages unrelated to the deprivation of a FAPE, the IDEA does not require the plaintiff to exhaust administrative remedies before seeking damages in court.
Finally, courts have refused to apply the exhaustion requirement when students do not need special education. To this end, courts agree that parents do not have to exhaust administrative remedies in cases under Section 504 if their children are not receiving services under the IDEA, even if their children are impaired.140
Rights of Parties to a Hearing
Parties involved in due process hearings have the right to be accompanied and advised by counsel with special knowledge concerning the education of students with disabilities.141 In a key point, the Supreme Court of Delaware held that the IDEA does not authorize nonattorneys to represent parents at hearings.142 Consequently, the court affirmed an order forbidding nonattorneys with special knowledge and training with respect to the problems of students with disabilities to represent parents at due process hearings.
Insofar as due process hearings are quasi-judicial proceedings, the parties may present evidence, compel the attendance of witnesses, and cross-examine witnesses during hearings.143 The parties can prohibit the introduction of evidence that is not disclosed at least five business days prior to hearings.144 At the same time, the parties have the right to obtain a written verbatim record of the hearing, or, at the option of the parents, an audio recording of what was said, as well as findings of fact and decisions.145
In a procedural matter, the federal trial court in New Jersey observed that a mother who was indigent, and could not afford to pay for a written transcript of a hearing, was entitled to receive one at public expense so that she could challenge the resulting order.146 The court contended that a copy of the transcript of the lengthy and complex hearing was an essential tool for the mother’s effective and efficient review of its outcome. In a slightly different case, the First Circuit ruled that educational officials could provide either a written transcript or an electronic record of the administrative hearings to indigent parents.147
Pursuant to the IDEA, hearing officers must render final decisions within 45 days of requests for hearings.148 Even so, hearing officers can grant requests from the parties for extensions or continuances.149 The adjudications of hearing officers are final unless they are appealed.150
In jurisdictions with two-tiered due process hearing systems, officials must ensure that final decisions, based on the record, are reached within 30 days of requests for review.151 At least one court decreed that the IDEA’s finality requirement precludes a hearing officer from taking any action that interferes with rendering a final adjudicative order. The federal trial court in Delaware acknowledged that a hearing panel may not refer a case to some other body for review.152 In this case, a hearing panel commented that a student was entitled to a residential placement but did not order the child to be moved to such a setting. Instead, the panel commented that a mechanism should have been established to evaluate options. The court concluded that referring the case for additional review did not comport with the IDEA’s finality requirements, thereby undermining the concern for prompt resolution of placement disputes.
Once administrative review is complete, aggrieved parties may file suit in federal or state courts.153 Aggrieved parties are generally considered to be the losing parties or the ones who did not obtain the relief sought. While prevailing parties are ordinarily not viewed as aggrieved, the federal trial court in Delaware permitted parents who won on the legal issues but did not obtain the relief they sought to be treated as the aggrieved party so that they could seek judicial review.154
Judicial Review
As reflected in Figure 7.1, and as mentioned earlier, under the IDEA, either party can appeal the results of due process hearings to federal or state courts once the party has exhausted administrative remedies. As important as this issue is, though, the IDEA is silent on whether cases must be submitted to juries. Insofar as due process hearings generate their own records, the courts generally do not conduct trials de novo. In other words, courts ordinarily do not repeat investigations that occurred administratively. Rather, the courts examine the records of hearings and hear new or additional testimony when necessary before ruling. Due to the importance Congress placed on the administrative process, courts are required to give due weight to the results of due process hearings and overturn adjudication only when they are convinced that it was clearly erroneous.
Pro Se Parents
As a preliminary matter, while parents have the right to have attorneys represent them at trials and parents who are lawyers can represent themselves, the issue of attorney fees aside, questions have arisen over whether parents who are not attorneys can represent their children in judicial proceedings. Consistent with many other areas under the IDEA, the courts are split on the question of whether parents who are not attorneys can act as pro se plaintiffs, literally, “on behalf of the self,” in disputes over the education of their children in IDEA actions.155
Figure 7.1 Dispute Resolution Under the IDEA
The Supreme Court, in Winkelman ex rel. Winkelman v. Parma City School District (Winkelman),156 settled the controversy in 2007. Winkelman began when the parents of a student in Ohio who was autistic initiated a pro se action in a federal trial court seeking a FAPE for their son. After failing to gain the sought relief, the parents appealed, again in a pro se action. Relying on its own precedent157 as well as an earlier case from the Third Circuit,158 the Sixth Circuit held that the legislative purpose of the IDEA did not support the parents’ right to proceed pro se.159
On further review in Winkelman, the Supreme Court reversed, noting that the parents enjoy enforceable rights during administrative hearings and it would be inconsistent with the statutory scheme to bar them from continuing to assert those rights in federal court. The Court found nothing in the IDEA’s provisions to exclude parents who exercised their own rights from statutory protections the moment the administrative proceedings are over. The Court added that the IDEA does not bar parents from seeking to vindicate the rights accorded them once the time comes for a civil action, interpreting the statute’s references to parental rights as meaning that rights are conveyed to parents as well as to their children. Through its text and structure, the Court interpreted the IDEA as creating an independent stake for parents in the procedures, with costs implicated by this process but also in the substantive decisions to be made.
In a dissent, Justice Scalia maintained that parents have the right to proceed pro se when seeking reimbursement for private school expenses or to redress violations of their own procedural rights under the IDEA, but not when they seek judicial declarations that the education of their children is substantially inadequate. In Scalia’s view, the right to a FAPE belongs to the children who receive the education. Although parents have an interest in ensuring that their children receive proper educations, Scalia believed that there is a difference between an interest and a statutory right.
In Winkelman the Supreme Court indicated that parents could file suit pro se in federal court because their rights under the IDEA were coexistent with those of their children. Subsequently, two circuits agreed that where only the children’s rights were at issue, the parents were barred from proceeding pro se. The Third Circuit, in a case from New Jersey, stated that Winkelman did not allow parents to pursue any statutory or common law claims on their children’s behalf.160 In a Second Circuit dispute from Vermont, the court acknowledged that parents have independent, enforceable rights under the IDEA, but insisted that insofar as the complaint in the present action named only their incompetent adult child as a petitioner and did not assert any claims on their own behalf, they could not represent her.161 The court explained that laymen cannot represent anyone other than themselves. It is important to note that insofar as both of these cases were unpublished, they are not binding precedent.
Standing
In order to file suit, parties bringing suit must have standing, or legitimate interests, in the issues litigated. Put another way, parties must be able to show that they were faced with threatened injuries or deprivations of rights. As most of the cases in this chapter, and book, reveal, the vast majority of cases litigated on behalf of students with disabilities are filed by their parents; moreover, surrogate parents can file suits to protect the rights of these children.162 For example, the Second Circuit acknowledged that the father of a student with disabilities from New York had standing to sue over the methods by which hearing officers were selected.163 The court added that insofar as the father had an enforceable right to an impartial hearing on behalf of his son, he had standing to challenge how hearing officers are selected.
Parents can lose their standing if they are no longer the legal guardians of their children. In such a case, the Fifth Circuit maintained that under Texas law, a child’s managing conservator, not her father, had the authority to file suit on her behalf.164 In another dispute, where a divorce decree granted a mother the sole custody of her daughter, a federal trial court in Pennsylvania concluded that the father did not have standing to sue.165
In a case seeking reimbursement for the partial depletion of health insurance benefits that were used to procure special education services, the Fourth Circuit agreed that a student from North Carolina had standing.166 The court noted that insofar as using her insurance benefits to pay for special education diminished the student’s resources because the policy capped her available benefits, she had a legitimate interest in the outcome of the litigation. The same court subsequently affirmed that a father from Virginia who sought reimbursement of placement expenses paid by his insurance did not have standing because a decrease in lifetime benefits would not have affected his child since she was no longer covered by the policy that paid the benefits.167 In two separate actions, a federal trial court in Pennsylvania declared that an insurance company lacked standing under the IDEA when attempting to compel a board to provide services it had been paying for under health insurance policies.168 The court dismissed the cases on the bases that only aggrieved parents or school boards had access to the IDEA’s due process mechanism.
The IDEA permits school officials to ask for hearings if parents refuse to consent to evaluations.169 Unfortunately, the courts do not agree on whether states can be aggrieved parties that challenge the results of due process hearings. In one such case, the Ninth Circuit decided that a board from California could file such a suit.170 Similarly, the Seventh Circuit asserted that a nonprofit corporation in Indiana that operated a licensed child care facility had standing to advocate for the rights of students with disabilities placed in its custody.171 The court wrote that the corporation had standing because the denial of the students’ IDEA rights would have deprived it of money to which it otherwise would have been entitled. According to the court, the corporation was an aggrieved party in light of the outcome of a due process hearing.
On the other hand, the Third172 and Eleventh173 Circuits, in cases from New Jersey and Georgia, respectively, concurred that school boards lacked standing to seek to compel the state educational agency to provide special education services. The courts were convinced that the IDEA was designed to resolve disputes about particular IEPs and that nothing in it permits local boards to sue states to compel them to fulfill their statutory duties. Further, the Sixth174 and Ninth175 Circuits affirmed that school boards in Michigan and Washington, respectively, could not sue the state to challenge their compliance with the procedural provisions set out in the IDEA. In like fashion, federal trial courts in the District of Columbia,176 Indiana,177 and New York178 agreed that local boards lacked standing to sue each other in disputes under the IDEA. In a series of cases, the federal trial court in the District of Columbia maintained that the board there could not be joined as a party in suits against charter schools.179 Since charter schools in the District act as their own local education agencies, the court essentially found that the public school officials had no interest in the outcome of the cases.
The Second Circuit affirmed that parents in New York whose children attended an out-of-state facility had standing to sue the state’s education department to prevent it from enforcing a regulation prohibiting the use of aversive interventions.180 Insofar as the state in which the facility was located allowed the use of aversive interventions, the methodology the plaintiffs desired, the court was of the view that if the parents prevailed, their children could receive this form of treatment.
The Third Circuit affirmed that a former special education student from Pennsylvania could not bring suit under the IDEA alleging that she had been misidentified as a student with disabilities.181 The court reasoned that claims could be brought under the IDEA only on behalf of “children with disabilities.” Since the student claimed that she did not have, and had never had, disabilities, the court determined that she was excluded from the IDEA’s protections.
Burden of Proof
The Supreme Court resolved who bears the burden of proof in challenging IEPs in due process hearings. Yet, the IDEA and its regulations remain silent on who bears the burden of proof in judicial disputes. As such, this is a question left for judicial discretion.182 Insofar as the courts are unable to agree on who bears the burden of proof in judicial proceedings, two perspectives have emerged.
The First,183 Fourth,184 Fifth,185 Sixth,186 Seventh,187 Tenth,188 and Eleventh189 Circuits agree that the party challenging an IEP or the result of a due process hearing bears the burden of proof. These courts generally concur that while the outcome of a due process hearing is entitled to a degree of judicial deference, the parties seeking to set aside administrative orders must demonstrate that the final results were inappropriate. In addition, the courts agreed that insofar as the IDEA creates a presumption in favor of then-current placements, the parties challenging student placements must prove that they were inappropriate.
Conversely, in judgments handed down prior to the Supreme Court’s ruling in Schaffer, the burden of proof in administrative hearings has generally been on the parties challenging IEPs, but the Third Circuit190 and a federal trial court in West Virginia191 placed the burden of proof on school boards. These courts agreed that insofar as boards bear the ultimate responsibility for providing special education, they should have to prove that proposed IEPs are appropriate. The courts also recognized the advantage school officials have over parents in proceedings brought pursuant to the IDEA. However, it is important to note that the rationales in these cases may no longer be valid in light of Schaffer. For example, a federal trial court in Pennsylvania declared that the burden of proof should remain on the same party throughout the case.192
Since litigation may take more than a year, IEPs that are being challenged may have expired by the time courts act. In the meantime, the parties may have initiated challenges to more recently developed IEPs. In cases such as this, courts ordinarily treat the losing parties in disputes over original IEPs as bearing the burden of producing evidence of changed circumstances that rendered initial IEPs inappropriate.193 When this happens, there is a presumption in favor of the placements that were ordered as a result of the first, disputed IEPs, unless parties can prove that the circumstances have changed.
Judicial Deference
In line with the Supreme Court’s directive that judges should not substitute their views for those of school authorities,194 most jurists defer to educators on matters dealing with appropriate instructional methodologies as long as school officials followed procedural requirements. The Fourth Circuit thus reiterated the widely accepted notion that neither it nor a trial court in Virginia should have disturbed an IEP simply because judges disagreed with its contents, since the judiciary owes deference to educators as long as IEPs meet the IDEA’s basic requirements.195 Due to its having found that school officials failed to follow proper procedures in developing the IEP, the court refused to grant deference to the hearing officer’s order.
Most judges defer to educators on matters about appropriate methodology as long as procedural requirements are followed.
The Supreme Court196 and other federal courts197 agree that the IDEA’s mandate requiring judges to review the records of due process hearings implies that their results must be given due weight. Still, it is unclear how much weight is due to these results. In Board of Education of the Hendrick Hudson Central School District v. Rowley,198 the Court added that questions of methodology are for resolution by the states, clarifying that the judiciary should defer to hearing officers on questions of the substantive content of IEPs and instructional methodology.
In a case from Massachusetts, the First Circuit declared that a trial court must reach its own independent judgment based on the record of the due process hearing as supplemented at trials.199 The court specified that while the amount of weight to be afforded the result of hearings is left to the discretion of trial courts, judges must consider the records carefully and endeavor to respond to administrative resolutions of all material issues. In another dispute, the First Circuit affirmed that a trial court in Maine did not err in failing to overlook or misconstrue evidence where its judgment was based on a supportable finding that an IEP was reasonably calculated to address a student’s needs.200
In a related matter, federal trial courts in California201 and New Jersey202 rejected the notion that judges have broad power to overturn the orders of hearing officers. These courts shared the view that the IDEA’s mandate for judicial review is not an open invitation for judges to substitute their views of sound educational policy for those of school officials. The Fourth Circuit, in a case from North Carolina, posited that a court is bound by an administrative record and additional evidence as produced at trial, but must act independently.203 Even so, in a separate order, the same court noted that a trial court erred by not deferring to a hearing officer who conducted a proper hearing, resolved factual questions in the normal way, and complied with all federal and state requirements.204 Conversely, in a case from Texas, the Fifth Circuit decided that jurists need not defer to hearing officers when judicial review reveals that officers erroneously assessed the facts or misapplied the law.205
The District of Columbia Circuit acknowledged that courts overturning the results of due process hearings must explain their grounds for doing so.206 In addition, a trial court in the same jurisdiction pointed out that judges may reverse the orders of hearing officers only when the judges are satisfied that school officials have proved that the officers erred.207 Moreover, the federal trial court in Massachusetts noted that while a hearing officer’s order must be accorded some deference, it is not entitled to great deference on matters of law.208
In two-tiered due process hearing schemes, courts usually defer to final administrative orders.209 Conversely, if review procedures are flawed, courts defer to initial adjudications.210 In such a case, the Fourth Circuit reasoned that a hearing officer in Virginia’s judgment should not have been accorded weight since he discredited a witness he had not seen or heard testify, while a local hearing officer relied on the credibility of the same witness.211 On remand, a trial court considered the fact that all of the parents’ witnesses had a record of testifying against the school board in evaluating the record of the due process hearing.212 The Fourth Circuit again affirmed, but it did so without a written opinion.213
Admission of Additional Evidence
The IDEA permits courts to hear additional evidence at the request of one of the parties.214 Still, courts can limit the amount and kind of extra evidence they are willing to admit, especially if it had not been introduced prior to judicial review.215 In the first of two cases, the Eleventh Circuit affirmed that a trial court in Georgia had the discretion to refuse to receive and consider evidence that a school board wished to offer in addition to the record of a due process hearing.216 However, the Sixth Circuit commented that a trial court in Tennessee erred in relying on additional evidence to address issues beyond those presented at a due process hearing over the appropriateness of a student’s IEP.217
The First Circuit affirmed that a party seeking to admit additional evidence must justify its request.218 Here, a trial court in Massachusetts refused to hear the testimony of witnesses for parents who could have testified at a due process hearing but whose testimony was deliberately withheld by their attorney. The panel determined that the trial court did not abuse its discretion in refusing to allow the witnesses to testify. In addition, a federal trial court in Illinois refused to admit evaluation materials that school officials had not previously submitted to the hearing officer.219 Noting that withholding this information from the hearing officer severely undercut the role of the administrative hearing, the court thought that such action deprived the court of the hearing officer’s expertise on the matter.
On the other hand, the Sixth Circuit expressed the view that a federal trial court in Tennessee was justified in admitting additional evaluation materials.220 The court recognized that the parents had neither the opportunity nor the resources to procure additional evaluations before the due process hearing took place.
A party wishing to present additional evidence must make its intention to do so clearly known to a court. For instance, the Seventh Circuit judged that where neither party made an intention to submit additional evidence known, a federal trial court in Illinois was entitled to assume that they wished to have the case resolved on the basis of the administrative record.221
The Sixth Circuit affirmed that it was appropriate for a trial court in Tennessee to consider evidence that a hearing officer failed to review.222 The court stressed that the admission of additional evidence did not undercut the administrative process. In a similar case from Texas, the Fifth Circuit agreed that a trial court gave due weight to the result of a due process hearing but was free to take additional evidence into consideration.223
Due to the delay that often occurs between the time when placements are finalized and when judicial review is initiated, additional evidence may be available about how students progressed in the disputed settings. It is not clear whether courts should admit evidence that develops after officials make disputed placements. The Ninth Circuit ruled that a trial court in California had the discretion to admit additional evidence concerning relevant events occurring after an administrative hearing.224 A federal trial court in Wisconsin also admitted evidence about a student’s progress in a home-based program during the time between the hearing and court review.225
On the other hand, in a case from New Jersey, the Third Circuit affirmed that IEPs and placements should be reviewed from the perspective of the information that was available when initial actions occurred.226 While the court conceded that events occurring after placements are made may be relevant, it refused to allow them to be substituted for threshold determinations of whether IEPs were reasonably calculated to confer FAPEs when they were written.
Mootness
Courts do not accept cases unless they present live controversies, meaning that the parties have real interests in their outcomes. To this end, courts have rejected cases as moot where they could not grant effective relief due to a student’s graduation227 or where relief would have served no purpose because a student moved.228 However, if the controversies that initiated complaints are no longer alive, but remain capable of repetition, courts may still hear the cases. In such a dispute, the Supreme Court acknowledged that judges may adjudicate ongoing controversies and have jurisdiction if there is a reasonable likelihood that a party will again suffer the deprivation of the rights that initiated the suit.229
Courts will not accept cases unless they present live controversies.
The Fifth Circuit declared a case moot after a school board in Mississippi agreed to provide a student with services.230 Similarly, the federal trial court in New Hampshire rejected the notion that a case was moot where a school year ended and there was no reasonable expectation that the controversy would have recurred.231 Subsequently, federal trial courts in Indiana232 and Texas233 dismissed claims as moot where students were no longer eligible to receive services because they reached the maximum eligibility age under state law. Once a student is removed from a disputed setting and receives a new placement, the placement issue is moot.234 Moreover, cases are moot if the parties no longer retain interests in their outcome.235
In its only special education case involving mootness, albeit not as the main issue, Honig v. Doe, 236 the Supreme Court affirmed that a dispute was not moot for a 20-year-old student who was still eligible to receive services under the IDEA, where there was a reasonable expectation that he would again be subjected to the deprivation of rights complained about in the litigation. Other courts have refused to treat cases as moot where issues were capable of repetition, such as when a school year ended,237 when the basic complaint still existed,238 when the IEP on which the suit was brought was superseded by a new IEP,239 and when parents enrolled their child in a private school.240 One federal appellate court went so far as to assert that a case was not moot when parents approved an IEP because the school board’s past failures to adhere to the IDEA enhanced the probability that future violations could occur.241
The Third Circuit, noting that a school board in New Jersey no longer responsible for educating a child must still be responsible for its past transgressions, observed that a child’s move out of state did not moot his claims for compensatory education.242 The Tenth Circuit was satisfied that even though a student from New Mexico left school and showed no desire to return, her suit for compensatory services was not moot.243 The court explained that the student was not seeking prospective relief, but rather, had alleged an injury for which a remedy could be fashioned. In the same way the federal trial court in the District of Columbia asserted that a live controversy remained in a case where a mother withdrew her child from a charter school and enrolled him in a private school because she sought compensatory services to remedy a past harm.244 In like manner, the First Circuit declared that parents’ move from Massachusetts to Connecticut did not moot their claims for reimbursement and attorney fees.245
Exchange of Information
Attorneys in IDEA proceedings generally exchange information prior to trials. Principles of fairness in the IDEA dictate that one side cannot withhold information that is crucial to the other party’s case because, just as in due process hearings, the goal is to have all possible evidence available to help measure the appropriateness of IEPs rather than to prevail in disputes just for the sake of winning. For example, the federal trial court for the District of Columbia held that the school board had to provide parents with information about private schools, the qualifications of the teachers in them, and the disabilities of the students attending them since these matters were not privileged.246 At the same time, the court acknowledged that the board was not required to provide information about due process hearings and suits challenging other placements since the parents’ attorney could obtain this material through normal legal research.
Res Judicata
Based on the principle of res judicata, courts cannot hear cases or render judgments on matters that they have already resolved. Res judicata stands for the proposition that a final judgment by a court of competent jurisdiction is conclusive and acts as an absolute bar to a subsequent action involving the same claim. By way of illustration, the Eleventh Circuit, in a case from Florida that was before it for the second time, affirmed that under res judicata, a trial court’s order prior to the first appeal precluded additional consideration of the issues.247 The federal trial court in the District of Columbia found that even though a mother masked her argument under a new legal theory, since all of her complaints ultimately relied on the same factual nucleus as an issue that had been resolved, her suit was barred by res judicata.248
Settlement Agreements
During the course of disputes, parents and school officials often negotiate settlement agreements designed effectively to end controversies. Settlement agreements are sometimes reached as a result of mediation that occurs before due process hearings have started or during litigation. When the parties agree to settlements during litigation, hearing officers or courts may either approve or reject them if they deem their terms to be contrary to public policy or existing law. In a representative case of this nature from Florida, the Eleventh Circuit reasoned that a trial court could vitiate a settlement agreement only if it violates public policy.249 The panel believed that the high cost of a proposed resolution in a settlement agreement did not render the agreement void as it was not contrary to public policy and did not contravene any statutes. Thus, the court issued an order enforcing the provisions of the settlement agreement to provide housing for a student with disabilities.
In a case from New Jersey, the federal trial court noted that the existence of a settlement agreement negotiated by parents and school officials during a due process hearing did not bar it from hearing the case.250 The court explained that despite the settlement agreement, school officials still had the duty to provide the student with a FAPE. The same court also offered that a settlement agreement reached through mediation formed a contract between the parties, but the court did not allow the board to avoid its responsibilities under the IDEA.251 The court emphasized that there was a presumption that the services agreed to by the parties at the time that they entered into the agreement met the student’s special education needs. In addition, the court pointed out that the parents had the right to question the terms of the agreement if there was a change in circumstances. On the other hand, in a case from Ohio the Sixth Circuit affirmed that a settlement agreement that unambiguously stated that all issues had been resolved precluded judicial review of its terms.252
Statutes of Limitations
Earlier versions of the IDEA did not contain a statute of limitations either for requesting due process hearings or filing suits after exhausting administrative remedies.253 Consequently, in amending the IDEA in 2004, Congress included specific statutes of limitations governing the timelines for seeking such actions.
The IDEA and its regulations now require parties to request impartial due process hearings within two years of the date they knew or should have known about the actions that form the bases of their complaints.254 Moreover, if states have explicit time limitations for requesting hearings, these limitations prevail.255
Limitations periods may be set aside if school boards specifically misrepresented that they resolved the problems forming the basis of complaints or if officials withheld information that they should have provided to parents.256 After final administrative orders are rendered, parties have 90 days to file judicial appeals.257 Again, if state laws provide otherwise, they prevail.258
Beginning and Waiving a Limitations Period
Pursuant to the IDEA, limitations periods for requesting administrative due process hearings begin when aggrieved parties either knew or should have known of the actions forming the bases of their complaints. This date is often established when parents reject offered IEPs. In other situations, such as when parents claim that earlier IEPs failed to provide FAPEs, courts must pinpoint dates on which the parents should have realized that they had reason for complaints.
Where a child was misdiagnosed and subsequently placed in an inappropriate program, a federal trial court in Georgia maintained, and the Eleventh Circuit agreed, that the statute of limitations did not begin to run until the correct diagnosis was established, because the parents did not know of the student’s injury until that time.259 In addition, the Second Circuit decided that a mother from New York should have known about alleged past denials of a FAPE when she first observed her daughter’s improvement in a new program and an expert expressed the opinion that she had not received appropriate services.260
In three disputes where parents sought compensatory education services as remedies for the past failures of school boards to provide appropriate services, federal trial courts in Pennsylvania agreed that there is no limitations period on compensatory education claims.261 In the earliest case the court explained that unlike reimbursement, which is a right that belongs to parents, compensatory education awards belong to children and their entitlement to such awards should not depend on the diligence of their parents.262
Limitations periods for seeking judicial review of administrative adjudications generally begin when final orders are released. Federal trial courts in the District of Columbia263 and New Hampshire264 clarified that the statute of limitations begins to run on the day decisions are released, not the day the aggrieved parties receive copies of them in the mail. Likewise, the federal trial court in Connecticut set the beginning of a limitations period on the date a final order was mailed.265
Conversely, the Seventh Circuit affirmed that where a prevailing parent sought to recover attorney fees from a school board in Illinois, the statute of limitations did not begin until after the expiration of the time when the school board could file an appeal of the hearing officer’s adjudication.266 The court added that the mother could neither have recovered attorney fees until administrative and judicial proceedings were finished nor have known that the board would not have appealed the administrative order until after the time period to do so expired. In cases not necessarily involving appeals of due process hearings, courts agree that the clock begins to run on the day that students reach the age of majority,267 their eligibility for services ends,268 or they graduate.269
Occasionally, difficulties ensue when parents are not fully aware of their procedural rights under the IDEA. A federal trial court in Illinois commented that a case filed after the statute of limitations expired was not untimely where parents were unaware of the limitations period and were not apprised of the deadline for challenging the results of a due process hearing.270 The court interpreted the IDEA as requiring state officials to inform parents of the full range of available procedural avenues. In addition, the federal trial court in New Hampshire declared that a case filed after the statute of limitations expired was not time-barred since the hearing officer failed to inform the parents of how much time they had to file an appeal.271
Courts set aside limitations periods when school boards withhold information from parents or fail to notify them properly of their rights. For example, the federal trial court in New Jersey waived the limitations period because school personnel did not provide parents with written notice explaining their reasons for denying the parents’ request for an evaluation.272 Similarly, federal trial courts in California273 and Texas274 agreed that the failure of board officials to provide parents with procedural safeguards notices created an exception to the statute of limitations. In other cases federal trial courts in the District of Columbia275 and New Mexico276 suspended the statute of limitations because board officials failed to inform the parents of the limitations period.
In a case from Pennsylvania, the Third Circuit affirmed that for the IDEA’s exceptions to the statute of limitations to apply, school officials must know that their representations of a student’s progress or disabilities are untrue or inconsistent with their own assessments.277 The court wrote that in order to be excused from the limitations period, parents must show that school personnel intentionally misled them or knowingly deceived them regarding their children’s status. Further, the court thought that parents must show that misrepresentations or withholding of information caused their failure to request hearings or file complaints in timely manners.
As illustrated by a case from Connecticut, limitations periods may be tolled, or suspended, for good reason. The federal trial court tolled the limitations period when a mother requested clarification of a hearing officer’s order.278 In like manner, the federal trial court in the District of Columbia tolled the limitations period where parents requested reconsideration of hearing officers’ adjudication.279
The First Circuit permitted a suit that was filed after the statute of limitations expired to continue where the parental delay was not unreasonable because in the interim they attempted to resolve their differences with the school committee.280 On remand, the federal trial court in New Hampshire found,281 and the First Circuit affirmed,282 that the case was not barred by the doctrine of laches, which applies when a party fails to assert a right, along with a lapse of time and other circumstances that put the other party at a disadvantage. The court conceded that school board officials failed to show that witnesses were unavailable or had failed memories. In a separate suit from Maine the First Circuit agreed that insofar as a parental delay in seeking reimbursement was unreasonable, it was barred by the doctrine of laches.283 In a conceptually related dispute, the Eleventh Circuit was of the opinion that insofar as school officials from Florida never raised the issue of a suit’s being time-barred, they waived the right to use the statute of limitations as a defense.284
Since the IDEA has not established a statute of limitations for requesting attorney fees, courts must set limitations periods based on analogous state statutes.285 Therefore, limitations periods for seeking attorney fees vary from one jurisdiction to the next.
Cases Under Other Statutes
The IDEA is the primary, but not only, federal statute protecting the rights of students with disabilities. Parents can seek protection for the educational rights of their children with disabilities under other federal statutes and, in particular, under state laws that may provide greater protection than the IDEA.286 To this end, the IDEA specifies that none of its provisions can be interpreted as restricting, or limiting, the rights, procedures, and remedies available under the Constitution, Title V of the Rehabilitation Act of 1973, or other federal statutes protecting the rights of students with disabilities.287 The IDEA adds that before suits can be filed under one of these other laws, dissatisfied parties must exhaust all available administrative remedies.288
Most cases seeking relief under statutes other than the IDEA are filed pursuant to Section 1983 of the Civil Rights Act of 1871,289 an expansive law used to enforce rights secured by federal law or the Constitution. A variety of courts have agreed that Section 1983 may be used to enforce the results of a due process hearing290 or to remedy a deprivation of due process or other rights secured by the IDEA.291 Yet, courts have made it clear that cases filed under Section 1983 must be predicated on more than re-allegations of claims presented under the IDEA,292 that Section 1983 charges lack viability when adequate remedies exist under other laws,293 and that Section 1983 cannot be used to expand the rights of students or remedies available under the IDEA.294 For example, since damages are unavailable under the IDEA, courts have refused to allow parents to proceed with such claims under Section 1983.295
Pursuant to Section 1983, school officials acting under the color of state law, meaning that they acted as if they had the official authority to act as they did, may be liable for actions that have the effect of depriving students (or their parents) of rights secured by federal law. In such a case, a federal trial court in Indiana ruled that an attorney who was hired to represent a school board in a special education case could be sued under Section 1983.296 The student’s parents successfully claimed that the advice the attorney gave the board led officials to deprive their son of his IDEA rights.
Section 504 of the Rehabilitation Act of 1973 (Section 504)297 prohibits discrimination against individuals with disabilities in programs receiving federal financial assistance. As might have been expected, parties frequently file suit alleging discrimination under Section 504 and the deprivation of rights under the IDEA. However, if disputes can be settled under the IDEA’s provisions, courts do not turn to Section 504 for relief. A case from Pennsylvania is illustrative.298 The parents of a student with physical disabilities requested a due process hearing after school officials refused to permit him to have his service dog accompany him to class unless he moved to a less restrictive placement. After a hearing officer maintained that the student could be educated in the less restrictive environment, his parents filed suit under Section 504 rather than challenge the hearing officer’s order. In denying the parental claim, a federal trial court viewed the IDEA as the exclusive avenue through which they could bring equal protection claims on behalf of their son’s right to a FAPE. If relief is unavailable under the IDEA, a case may proceed under Section 504.299
The bottom line is that if school officials comply with the IDEA, courts are generally satisfied that they will have met the dictates of Section 504.300 In addition, at least one court declared that a party cannot rely on Section 504 to expand the rights available under the IDEA.301 Students’ rights under Section 504 are covered thoroughly in Chapter 9.
Frequently Asked Questions
Q: What is the advantage of using the mediation process as opposed to proceeding directly to due process hearings?
A: Unfortunately, due process hearings can be very adversarial. Mediation, on the other hand, can be a nonadversarial process to help the parties to communicate more readily and resolve their dispute in a manner acceptable to both sides. The adversarial nature of due process hearings often causes permanent breakdowns in the relationships between parents or guardians and school officials. Conversely, mediation may help to maintain working relationships between parents or guardians and school officials.
Q: Since many special education disputes end up in court, why is it necessary to exhaust administrative remedies? Would disputes be settled faster if the parties could go directly to court?
A: Exhaustion has two primary purposes: First, exhaustion allows for fact-finding by hearing officers who are familiar with special education; second, exhaustion provides a factual record for judicial review. While the results of many hearings are appealed to the courts, the majority are not. The administrative process provides a fairly expedient means of settling disputes. If disputes are appealed, judicial review can be rendered more quickly because factual records exist and courts do not need to engage in fact-finding.
Q: If parents are not satisfied with the decisions of the IEP teams of their children, how long do they have to request due process hearings?
A: The IDEA contains a two-year statute of limitations for requesting hearings. The timeline begins on the date parents knew, or should have known, of the actions that are the bases of their complaints. The limitations period can be extended if school officials misrepresented or withheld critical information from parents that interfered with their ability to request hearings. If state laws have established different limitations periods, affording students greater protection, these prevail over the IDEA and its regulations.
Q: How long do the losing parties to administrative hearings have to file judicial appeals?
A: The losing parties to administrative hearings have 90 days to file appeals unless state law dictates otherwise. Insofar as statutes of limitations may vary considerably from state to state, it is important for school administrators to check state law in this regard.
Q: Which party bears the burden of proof in administrative hearings?
A: The Supreme Court held that the parties challenging IEPs bear the burden of proof. Since it is rare for school board officials to challenge their own IEPs, this effectively places the burden of proof on parents.
Q: Which party bears the burden of proof in court?
A: This varies by jurisdiction. Some courts have ruled that the parties bringing appeals bear the burden of proof, while others have decided that those challenging IEPs or the status quo have the burden of showing why they are inappropriate. Yet, based on state laws, other courts have reasoned that the burden is always on school boards to show that their proposed IEPs and placements are appropriate. It is important for school officials to be aware of where courts within their jurisdictions place the burden of proof.
Q: Can parents bypass the IDEA by filing suit under other statutes such as Section 504 or Section 1983?
A: The IDEA specifically states that none of its provisions can be interpreted as restricting or limiting the remedies available under the Constitution, Section 504, or other statutes protecting the rights of students with disabilities. Thus, parents or guardians may file suits under statutes other than the IDEA. Even so, courts have required parents or guardians to exhaust all administrative remedies under the IDEA if such remedies have the potential to provide appropriate relief for their complaints.
Recommendations
In light of the IDEA’s extensive mechanism for dispute resolution, educators should
• Familiarize themselves with the dispute resolution provisions in both federal and state law. This is important because procedures vary from one jurisdiction to the next, especially, for example, when it comes to due process hearings, since even though the majority of jurisdictions provide two levels of review, others are restricted to one.
• Take formal steps to explain to parents all of their rights to challenge any aspect of the education of their children.
• Make sure to inform parents that they may request mediation, which remains optional, or due process hearings if disputes cannot be resolved.
• Notify parents of their obligation to exhaust administrative remedies unless it is clearly not feasible to do so.
• Pay careful attention, in consultation with their attorneys, to the date restrictions in the IDEA and state law with regard to initiating due process hearings and statutes of limitations, which vary significantly from one state to the next.
• When preparing for due process hearings, comply with the IDEA’s requirement directing them to share all information with parents at least five days prior to the hearings.
• Keep careful records of all materials relating to student placements since this information is most useful in due process hearings and judicial proceedings.
• Remind parents that they may safeguard the rights of their children under other federal and state laws in addition to the IDEA.
Conflict Management: IDEA Compliance
Key Concepts in This Chapter
• Practicing Preventative Law
• Resolving Disputes
• Hearing Preparation
• Selecting an Attorney
As this book has demonstrated, a major part of the Individuals with Disabilities Education Act (IDEA)1 is designed to ensure that school officials comply with its provisions, which require educators to provide a significant array of substantive and procedural rights to students with disabilities and their parents. At the same time, the IDEA’s due process provisions created a vehicle for the resolution of disputes regarding the delivery of the free appropriate public education (FAPE) it guarantees students with disabilities.
The IDEA’s due process mechanisms are the most elaborate system that Congress has ever established for the resolution of disputes between parents and school officials. Unfortunately, although Congress intended for parents and educators to work together in developing individualized education programs (IEPs) for students with disabilities, there are times when the parties simply do not agree. Aware of the fact that parents and school officials cannot always agree about what is best for children, Congress saw the need to include dispute resolution processes in the IDEA.
This book provides information about many of the literally thousands of cases that have been filed since the IDEA was enacted. These suits involved numerous aspects of the statute and its regulations over the delivery of FAPEs. Moreover, the deluge of litigation in special education is unlikely to stop in the near future since the rate of cases continues to increase.2
Special education administrators have been heard to lament that it often seems as though they must be half lawyers to carry out their positions successfully. While having law degrees is certainly not a prerequisite for assuming leadership positions in education, the reality remains that the process for providing special education to students with disabilities is very much a legal one. Successful special education practitioners must therefore be knowledgeable about the law and understand how the legal system operates. The educators who are most successful are those who proactively manage the legal system rather than respond by allowing the legal system to manage their activities. Inasmuch as the purpose of this chapter is to provide information about how and when to access the legal system, it does not end with specific recommendations apart from this narrative discussion.
Preventative Law
The best way to deal with legal challenges is to prevent them from occurring, a practice known as preventative law, which focuses on increasing educator awareness of the dimensions of education or school law.3 Even so, in recent years school boards have been forced to budget increased amounts of money for legal fees. It almost goes without saying that few will argue that this money would be better spent on educational programs. This is most true in special education, where litigation has increased faster than in any other area related to schools.4 In addition to their own legal fees, school boards may have to reimburse parents who prevail in litigation for their attorney fees.
Aware of the need to avoid unnecessary litigation, many school officials have demonstrated an interest in the area known as preventative law. The goals of preventative law are to eliminate disputes before they can arise and to put school systems in favorable positions should litigation occur.
Aware of the need to avoid unnecessary litigation, many school officials have demonstrated an interest in the area known as preventative law. The goals of preventative law are to eliminate disputes before they can arise and to put school systems in favorable positions should litigation occur. In order to be most effective, educators must practice preventative law on a daily basis by seeking permanent solutions to situations that give rise to conflict in schools. Generally, it is less expensive to find permanent solutions by enacting proactive policies and procedures than to mount what essentially are reactive or after-the-fact defenses in potentially protracted litigation.
The first step in any program of preventative law is for school leaders and special education practitioners, including teachers, aides, and providers of related services, to be knowledgeable about the legal issues in special education. Reading this book and others like it should provide educators with a basic knowledge of the issues and the results of previous litigation. However, the law is constantly evolving as new cases that can alter its status are decided daily. Previous chapters cited examples of how these changes have occurred. Thus, school officials must take affirmative steps to stay abreast of legal developments.
Today numerous sources of information exist about issues and developments in education law. The Education Law Association (ELA), a nonadvocacy group headquartered at Cleveland State University in Ohio, publishes The Yearbook of Education Law, often simply called The Yearbook, which includes a chapter on special education law. ELA also publishes a monthly newsletter, ELA Notes, and a reporter, School Law Reporter, as well as monographs to provide up-to-date information on school law. In the interests of full disclosure, we would like to point out that we are both past presidents of ELA. In addition, we have both worked on The Yearbook: Allan G. Osborne has written the chapter on students with disabilities in The Yearbook since 1990, and Charles J. Russo has been editor of The Yearbook since 1995 and was a chapter author before becoming editor.
Many special education and general education journals frequently contain articles on legal issues, especially those involving special education. Professional and academic organizations such as the Council for Exceptional Children, the National School Boards Association and its state affiliates, the American Association of School Administrators, the American Educational Research Association, the Association of School Business Officials International, and ELA generally include sessions at their annual conventions that address legal issues. In addition, the colleges or schools of education in many institutions of higher education offer courses on school law and/or the law of special education that can serve as excellent resources for educators. Workshops on special education law should be part of every school system’s professional development program. In providing such ongoing professional development for staff, school officials should consider having their board’s attorneys join in the presentations so that they can provide up-to-date legal perspectives. At the end of this book are additional helpful resources: Resource B includes the websites of all 50 state (or commonwealth) departments of education; Resource C provides a list of helpful special education websites along with brief descriptions of what they contain.
Working With Parents
Litigation frequently arises out of misunderstandings or small differences of opinion between parties. A great deal of costly and time-consuming litigation can be avoided if educators keep lines of communication open with parents and are willing to reach compromises when disagreements occur. When parents reject proposed special education placements and/or IEPs for their children, school officials should make every attempt possible to evaluate their reasons for doing so. The rejections may be due to misunderstandings over what proposals entail or disagreements with only minor aspects of IEPs. If educators do not communicate, or are unwilling to compromise, then litigation is sure to follow.
One of the most important aspects of the communication process for school officials, especially with parents, is to be active listeners. When parents present counterproposals or make additional demands, educators must listen and give serious thought to what they hear.
One of the most important aspects of the communication process for school officials, especially with parents, is to be active listeners. When parents present counterproposals or make additional demands, educators must listen and give serious thought to what they hear. In the spirit of compromise, school officials should be prepared to make some concessions. If educators cannot meet parental demands, they should take great care in explaining why parental proposals cannot or should not be implemented as the parents wish.
Another common source of litigation, in addition to conflicts with parents, is the failure of school personnel to implement federal and state laws and policies as well as local school board policies. Put another way, although school boards typically have adopted appropriate and legally correct policies and procedures, their employees sometimes fail to implement them properly in all situations. This means that it is crucial for educational leaders to prepare new and continuing employees by providing ongoing professional development activities to ensure that staff members are aware of all policies and procedures as well as the importance of following these requirements.
At least three items can help educators to minimize conflict with parents.5 First, educators should keep parents informed and offer their support by providing parents with information about the disabilities of their children. This includes directing parents to their central office personnel, to local support groups that can better help them to understand the disabilities of their children, and to useful websites such as those identified in the resources at the end of this book.
Second, educators should recognize that insofar as parents are part of the solution, not part of the problem, it is important to work with them in the best interest of the children with disabilities. Sadly, some school officials treat the parents of special education (and other) students as potential troublemakers rather than as valuable partners who can help address the needs of their children. Educators should keep in mind that because, unlike parents, they are temporary in the lives of children, they must work together with parents in the process of designing educational programming that best suits the needs of students with disabilities.
Third, educators should follow the law. Litigation involving special education can be contentious, and expensive, since prevailing parents can recover attorney fees. Because of this, one of the most important steps for school officials to take in the realm of preventative law is to conduct periodical legal audits focusing on board policies, procedures, and practices to ensure that they are legally correct. Since the status of the law is constantly evolving, it is important to complete legal audits at least every two years but preferably annually. School board attorneys, especially those who focus on special education, acting as part of teams with directors of special education and other central office personnel, should work together in conducting audits.
Dispute Resolution
Unfortunately, despite the best efforts of school officials to prevent it, litigation is a fact of life in today’s school systems. Honest disagreements over what constitutes FAPEs are all but certain to occur between parents and special educators. Insofar as parents, for their own reasons, sometimes make demands or have unrealistic expectations that school officials cannot (and may not be required to) meet, compromise is not always possible. Further, sometimes litigation ensues because school district personnel make errors.
As described in Chapter 7, the IDEA contains a sophisticated system for dispute resolution. Rather than reiterate here the key points from Chapter 7, this section outlines steps that school officials should take when parents threaten to initiate or do initiate legal action.
Mediation
Sometimes communications between school officials and parents break down, making it difficult for the parties to sit down to work out their disagreements. Mediation can be helpful in situations such as these, and the IDEA now directs states and educational officials to offer mediation services at no cost to parents prior to scheduling due process hearings. Mediation is a viable alternative for the resolution of disputed IEPs but cannot be used to deny or delay parental rights to formal due process hearings. In fact, parents cannot be compelled to enter into mediation if they prefer to go straight to due process hearings.
The parties involved in special education disputes may engage the services of impartial mediators who can attempt to bring them together through negotiation.
The parties involved in special education disputes may engage the services of impartial mediators who can attempt to bring them together through negotiation. Moreover, a variety of states have provisions in their own special education laws for formal mediation processes prior to litigation; also, the IDEA requires state officials to maintain a list of trained, impartial mediators. Successful mediation depends on the willingness of school officials to compromise. Educational officials must evaluate any reasonable proposals that are presented by either parents or mediators and be prepared to offer specific counterproposals.
There are many advantages to trying mediation before proceeding to due process hearings. The costs involved and the time spent on due process hearings certainly justify the effort to mediate and avoid the hearing stage. Perhaps most important, mediation can salvage the working relationships between parents and school officials. Unfortunately, even though it is not supposed to be so, due process hearings are often adversarial processes that do little to foster positive working relationships between parents and school officials.
Resolution Conference
A provision in the IDEA calls for resolution sessions to take place within 15 days of when parents file formal complaints about the education of their children with disabilities.6 These conferences are designed to discuss parental complaints and all pertinent facts so that the disagreements can be resolved. In addition to the parents, relevant members of the IEP team should attend resolution sessions. School board attorneys may not attend resolution sessions unless the parents bring their attorneys along. As with mediation, this step is voluntary and does not need to occur if both parties either agree to waive resolution sessions or to proceed directly to mediation.
Insofar as many disputes result from misunderstandings or unclear communication, resolution conferences provide one more opportunity to satisfy parental concerns in nonadversarial contexts.
School officials would be wise to take advantage of resolution conferences and should not agree to waive these sessions unless it is clear that parents will not participate. Insofar as many disputes result from misunderstandings or unclear communication, resolution conferences provide one more opportunity to satisfy parental concerns in nonadversarial contexts. As an added benefit, as with mediation, this process is far less costly than hearings.
Resolution conferences also provide opportunities for upper-level administrators, such as directors of special education, to become involved in the process of finding solutions to issues raised by parents. Insofar as administrators above the building level are often not involved in developing contested IEPs, they remain unaware of parental complaints until the complaints are filed. There are two benefits to having district-level administrators present at resolution sessions. First, because these administrators often have broader views of issues in light of their varied experiences, they can bring fresh perspectives to disputes. Second, since these administrators frequently have more authority to commit the resources of their school systems, they are able to offer options that IEP teams might not otherwise have considered. Consequently, it is often possible to resolve complaints simply by including persons with greater decision-making authority, since they bring something new to the table.
Preparing for Hearings
The best efforts of school officials notwithstanding, sometimes due process hearings are inevitable. If school officials have complied with all of the IDEA’s provisions in making their placement decisions, they need not fear due process hearings. Even so, there is simply no substitute for proper preparation prior to hearings.
Preparation for hearings must begin long before it is even apparent that hearings are to take place.
Preparation for hearings must begin long before it is even apparent that hearings are to take place. The key to success in due process hearings is for school officials to have all of the documentation handy to demonstrate their compliance with applicable laws, policies, and procedures. Documentation in this regard includes, but is certainly not limited to, copies of notice letters sent to parents, signed consent forms, copies of IEPs, and any and all other forms of written communication between the parties. It is impossible to create proper documentation after the fact if it does not exist. Accordingly, educational leaders should treat all special education situations as if they may culminate in hearings. In other words, school officials should begin documentation on the day they receive requests for services or referrals for evaluations. Simply stated, special education personnel should be trained to make the documentation process part of the routine of providing special education services.
Generally, the chief special education administrator in school systems, typically with the title of director of special education, is responsible for representing school boards at hearings. Insofar as these administrators usually become directly involved in cases only after problems have developed, they may be unfamiliar with the histories of the children involved. The first task for such administrators, then, is to gather all pertinent information. At the same time, administrators must become familiar with all aspects and details of cases, since the decisions that need to be made throughout the hearing process require thorough knowledge of the students.
In preparing for hearings, it is worth keeping in mind that the requirements and qualifications for hearing officers vary from one state to the next. In some states, such as Ohio,7 hearing officers must be attorneys with some knowledge of special education practices. On the other hand, in states such as North Carolina,8 hearing officers need not be attorneys and are typically faculty members from local colleges or universities who are versed in special education procedures. It would be a mistake to assume that hearing officers have detailed knowledge of a school system’s programs or other available options. For this reason educators must inform hearing officers about the positive aspects of the school officials’ proposals and any weaknesses in the parents’ position.
One of the most important pieces of evidence that school officials must supply at hearings is proof that they complied with all relevant due process procedures. If officials cannot provide this evidence, or have not complied with the procedures, they should acknowledge their errors. While not all procedural errors are fatal to cases, evasiveness or intentional covering up of procedural errors can be very damaging to the cases of school boards since this can weaken their credibility.
During hearings it is important for the representatives of school boards to make complete presentations of the facts. It may be helpful to use visual aids such as charts, diagrams, or other graphic presentations to clarify points made during the oral argument or cross-examination of expert witnesses. Careful advanced preparation of these materials is necessary.
Those who testify or present evidence on behalf of school systems must also be well prepared in advance. This means not only that witnesses should be familiar with the information about which they are to provide testimony but also that they should be prepared by being given sample questions of the type that they are likely to face at hearings. While it is difficult to know in advance exactly what line of questioning the opposition is going to employ during cross-examinations, board attorneys should be able to prepare witnesses adequately for what is to come.
The task of school officials during hearings is to show that their proposed programs provide students with FAPEs. According to the IDEA, once educators have demonstrated that they have offered FAPEs, there is no need to examine alternative proposals. Even so, prudent school officials should be prepared to show why they do believe that the programs favored by the parents are unnecessary. Many school boards have succeeded in due process hearings by showing that the programs favored by the parents were inadequate.
The importance of school officials and their attorneys working together cannot be overemphasized because their communication is an important ingredient to success. The next section reviews factors to consider when choosing an attorney.
Selecting an Attorney
The party that is in the right in special education litigation is not automatically the victor. As in any legal contest, the party that presents the better case wins most often. This being the situation, having qualified attorneys may make all the difference between success and failure at due process hearings and/or in litigation. Thus, the necessity of having skilled attorneys in special education suits cannot be overemphasized.
As an area of law, special education has become increasingly important due to the tremendous amount of litigation that has occurred since the IDEA was first enacted in 1975.
As an area of law, special education has become increasingly important due to the tremendous amount of litigation that has occurred since the IDEA was first enacted in 1975. School officials must be aware that the law in this regard has become so specialized that they cannot rely solely on their regular attorneys to defend them in special education suits. Put another way, as well qualified as school board attorneys are to handle most legal affairs, many may lack the specialized knowledge that is required to litigate special education cases adequately. To this end, school boards should consider retaining separate attorneys to handle their special education litigation. On the other hand, many boards retain the services of large law firms that focus on education law, firms that typically have attorneys on staff who devote significant portions, if not all, of their practices to the law of special education. Under these circumstances, school officials may need to look no farther than their present firms for special education counsel.
If school boards are not represented by large firms with special education divisions or lack their own counsel on staff, as is common in larger school systems, officials should locate and retain separate attorneys for special education litigation. These attorneys must be well versed in education law in general as well as in special education law and have experience in administrative hearing procedures since most litigation begins at this level. Further, attorneys should be familiar with educational issues and practices such as evaluation methods, teaching techniques, and various placement options. Naturally, experienced and talented attorneys cost more. There simply is no substitute for knowledge and experience.
In order to locate qualified attorneys to handle special education suits, school officials should solicit referrals from other knowledgeable parties. Since the persons representing school boards in special education litigation may need to confer with the regular attorneys that boards retain, the boards’ attorneys would be a logical starting point. At the same time, board attorneys may have ready lists of qualified special education attorneys. Special education administrators from other districts can also serve as a good source of referrals. Finally, the national or state school board associations, in addition to county or state bar associations, should be able to provide lists of attorneys who specialize in special education litigation.
School boards should identify, and retain, attorneys long before they are needed. The point at which boards are under the pressure of litigation over a special education dispute is not the proper time to begin looking for qualified attorneys. It is better to retain, and form relationships with, attorneys well before litigation is pending. By adopting proactive approaches, school officials should be able to take the time necessary to make sure the attorneys they hire are the right persons for the job.
Hiring attorneys, regardless of whether they are generalists or specialists in special education, is much like choosing professionals to fill any open positions in school systems.
Hiring attorneys, regardless of whether they are generalists or specialists in special education, is much like choosing professionals to fill any open positions in school systems. Educational leaders should first focus on the needs of their districts and consider, as many boards are already doing, putting out requests for proposals, sometimes referred to simply as RFPs, for attorneys who are interested in, and meet the qualifications for, the jobs at hand.9 Once attorneys have submitted their applications, officials should examine their credentials, seek references from friends and colleagues in other systems that have used the attorneys under consideration, and interview the candidates that appear most qualified. Clearly, selecting attorneys is as important as filling any top-level administrative position in school districts. The process should not be taken lightly.
Conclusion
There is an old saying in sports that the best defense is a good offense. The same can be said of special education litigation except that unlike in sports, it is best to prevent a confrontation from occurring in the first place by engaging in preventative law.
The best way to avoid litigation is to be prepared constantly for such an eventuality. School officials can reduce their risk of suits by making sure that all employees are well aware of the law, and know and follow proper procedures. Employees who know and understand the law should be less likely to make legal errors. This is especially true in the field of special education where procedure plays such an important role.
When inevitable conflicts do arise, they do not automatically mean that litigation must follow since many disagreements can be resolved through more communication between the parties. Parents and school officials can clear up misunderstandings and negotiate compromises. The parties can also rely on formal mediation processes or prehearing resolution conferences to help settle disputes if communication between them breaks down.
Finally, when litigation is inevitable, school officials must not despair. If school employees have followed proper procedures and made placement decisions in good faith, then boards should have little cause for concern. Nevertheless, when entering the legal arena, school officials must come prepared by being able to defend their actions and recommendations while justifying all of their placement decisions. Moreover, qualified attorneys may be the greatest assets that school boards have when faced with the threat of litigation over providing special education to students with disabilities.
Chapter 3
Related Services, Assistive Technology, and Transition Services
Key Concepts in This Chapter
• When Related Services Must Be Provided
• Types of Related Services Required
• Role of Assistive Technology Devices and Services
• Transitioning Students to Postschool Activities
The Individuals with Disabilities Education Act (IDEA)1 requires school boards to provide related, or supportive, services to students with disabilities who need such services to assist them in benefiting from their special education programs.2 The IDEA defines related services as transportation and such developmental, corrective, and supportive services as speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation (including therapeutic recreation), social work services, school nurse services, counseling services (including rehabilitation counseling), orientation and mobility services, and medical services for diagnostic and evaluation purposes.3 Thus, by definition, related services are adjuncts to special education services.
The list of related service is exemplary, not exhaustive, even though Congress placed limits on what can be related services. Medical services are exempted unless they are specifically for diagnostic or evaluative purposes. Further, the 2004 IDEA amendments clarified that the term related services does not include surgically implanted medical devices or their replacements.4 Moreover, the regulations specify that optimization of the functioning, maintenance, or replacement of these devices is beyond the scope of school board responsibilities.5 This does not mean that school personnel lack all responsibility for monitoring devices or making sure that they function properly.6 While these provisions were included to address board responsibilities regarding cochlear implants, they apply to other surgically implanted devices as well.7
In Irving Independent School District v. Tatro, 8 the Supreme Court placed two important limitations on the obligations of school boards to provide related services. First, the Court insisted that “to be entitled to related services, a child must be [disabled] so as to require special education.”9 The Court pointed out that absent a disability requiring special education, “the need for what otherwise might qualify as a related service does not create an obligation under the Act.”10 Second, the Court noted that only services necessary to aid children with disabilities in benefitting from special education must be provided, regardless of how easily such services could be furnished. Thus, students who receive free appropriate public educations (FAPEs) from their special education without related services are not entitled to receive such services. Even though the IDEA does not require school boards to provide related services to students who are not receiving special education, as is explained in more detail in Chapter 9, Section 504 may require boards to furnish such services as reasonable accommodations to students with disabilities that may not necessarily entitle them to special education.
Supportive services may be deemed related services if they assist students with disabilities to benefit from special education. Related services may be provided by persons of differing professional backgrounds with a variety of occupational titles.
The IDEA’s regulations define each of the identified related services in detail.11 To the extent that these definitions are not exhaustive, any services, other than those that are specifically exempted, may be considered related services if they can assist students with disabilities in benefiting from special education. For example, services such as artistic and cultural programs or art, music, and dance therapy could be related services under the appropriate circumstances.12 These related services may be provided by persons of differing professional backgrounds with a variety of occupational titles.
The 1990 IDEA amendments added definitions of assistive technology devices and services. The 1997 and 2004 versions of the IDEA clarified and expanded these definitions. Assistive technology devices are items, pieces of equipment, or product systems used to increase, maintain, or improve the functional capabilities of individuals with disabilities. These devices may include commercially available, modified, or customized equipment13 but, as with related services, do not include a surgically implanted medical device.14 Assistive technology services are designed to help individuals in the selection, acquisition, or use of assistive technology devices.15 Assistive technology services include evaluations of the needs of children, provision of assistive technology devices, training in their use, coordination of other services with assistive technology, and maintenance and repair of devices.16
Interestingly, assistive technology is not specifically included in the definition of either special education or related services, but does fit within the definition of special education as specially designed instruction, and within the definition of related services as a developmental, corrective, or supportive service. Rather than include assistive technology within either of these two definitions, Congress chose to create it as a category separate from both special education and related services. Accordingly, assistive technology can be a special education service, a related service, or simply a supplementary aid or service.17 This is significant because school boards have the duty to provide supplementary aids and services to students with disabilities to allow them to be educated in the least restrictive environment (LRE).18
At the same time, the IDEA requires school boards to provide transition services to students with disabilities to promote movement from school to postschool activities such as employment, vocational training, and independent living. Transition services include related services, instruction, community experiences, and the acquisition of daily living skills.19 School officials must include statements in the individualized education plans (IEPs) of students identifying needed transition services beginning before they turn 16 years of age.20
There has been much litigation, including two cases that reached the Supreme Court, over the related services provisions of the IDEA. Against this background, the first part of this chapter reviews and analyzes litigation over related services. The next two sections address the requirements for providing assistive technology and transition services. The final portion of the chapter offers guidelines for educational personnel in situations where school boards must provide related services or assistive technology.
Related Services
Figure 3.1 summarizes when related services are required. Subsequent sections within this part detail the case law surrounding the different kinds of services schools must make available.
Figure 3.1 When Are Related Services Required?
Related services are required for students with disabilities when
• They are necessary for students to gain access to special education programs or the services outlined in their IEPs.
• They are needed for students to remain physically in educational programs.
• They are necessary for students to make meaningful progress toward the goals and objectives of their IEPs.
• Students’ needs are so intertwined that they require integrated programs of special education and related services.
• Students’ progress toward the goals and objectives of their IEPs depends on the resolution of other needs.
Transportation
It almost goes without saying that students cannot benefit from their IEPs if they cannot get to school. For this reason, transportation is probably the most common related service that school boards offer to students with disabilities. Transportation is typically provided in district-owned and operated vehicles, in vehicles owned and operated by private service providers, and/or via public transportation; in rare instances, boards may enter into contracts with parents to transport their children to school. School officials need to make special transportation arrangements when students are unable to access their usual modes of transportation. The term transportation, as used in the IDEA and its regulations, embodies travel to and from school, between schools, and around school buildings. Specialized equipment, such as adapted buses, lifts, and ramps, is required when needed to provide the transportation.21
The term transportation includes transit from a house to a vehicle ….As important as this related service is, though, door-to-door transportation is required only when a student is unable to get to school without such assistance.
An early case from Rhode Island demonstrates that the term transportation includes transit from a house to a vehicle. When school officials refused to provide assistance for a child who, because he was physically challenged, was unable to get from his home to a school bus without help, his father drove him to school for a period of time. Once the child’s father could no longer take him to school, the child stopped attending classes. The situation was finally rectified, but the court, declaring that transportation clearly was the responsibility of the school committee,22 awarded the parents compensation for their efforts in taking their son to school.23 As important as this related service is, though, door-to-door transportation is required only when students are unable to get to school without such assistance.24
If IEP teams place students in private schools, then these children are entitled to transportation.25 Should students attend residential private schools, they must be transported between their homes and schools for usual vacation periods. Regardless, one court affirmed that a student was not entitled to additional trips home for therapeutic purposes even though improved family relations was a goal of his IEP.26 The court maintained that a hearing officer did not abuse his discretion in deciding that parents were not entitled to reimbursement for more than three annual round trips from their home in Florida to a treatment facility in Georgia, because the school board had met its obligation to provide transportation for the child.
Under the IDEA, an alteration in the delivery of related services can be a change in placement. As discussed in greater detail in Chapter 5, changes in placement occur when students’ programs are altered in such a way that their IEPs cannot be implemented as written or their learning is affected. Even so, in a case from Pennsylvania, the Third Circuit conceded that a minor adjustment to a child’s transportation plan did not constitute a change in placement.27 Recognizing that transportation could have an effect on a student’s learning, the court found that an adjustment that added 10 minutes to the child’s trip home from school did not impact his learning. At the same time, transportation arrangements cannot be unreasonable. For instance, a federal trial court in Virginia ordered board officials to make better arrangements for a student whose ride took more than 30 minutes even though she lived only six miles from her school.28
School boards may not be required to provide transportation when parents elect to send their children to schools other than the ones recommended by school personnel. In such a case, a state court in Florida declared that a board was not obligated to transport a student to a geographically distant facility after she was enrolled there at her parents’ request. The court observed that transportation was unnecessary, since the student could have received an appropriate education at a closer facility.29
In today’s world, many students do not return home after school; instead, they go to afterschool caretakers. In a case originating in Texas, the Fifth Circuit determined that students with disabilities are entitled to be transported to caretakers even when those caretakers live out of a district’s attendance boundaries.30 The court indicated that the parental request for transporting their son, who had multiple disabilities, to his caretaker was reasonable and did not place a burden on the board.
On the other hand, the Eighth Circuit reasoned that a special education student from South Dakota was not entitled to be dropped off at a day care center that was outside of a school’s attendance area. Here the school board’s policy for all students dictated that children could be dropped off only within their school’s attendance boundary. The court, viewing the board policy as facially neutral, adding that the parental request was based on her personal convenience and not her son’s educational needs, affirmed that the board did not violate the IDEA by refusing to transport the child to his day care center.31 More recently, the federal trial court in Maine reached the same outcome. The court agreed that a hearing officer and a federal magistrate properly denied a mother’s request that her son, who had a severe learning disability, be allowed to ride a public school bus home and be met by another adult, since she could not be there to meet him when he returned from school.32 The court specified that the mother was not entitled to have her request granted because it was motivated by her child care arrangements with her ex-husband, with whom she shared custody, rather than her son’s educational needs.
As reflected in the previous paragraph, divorced parents reach a variety of shared custody agreements. In some circumstances, children reside with each parent on a rotating basis under joint custody arrangements. In a case illustrating an arrangement of this type, where a father lived outside of a district’s boundaries, a commonwealth court in Pennsylvania commented that a school board was required to provide transportation on the weeks when the child lived with his mother but not on the weeks when he lived with his father.33 The court wrote that the additional requested transportation did not address the boy’s special needs, but rather served only to accommodate the parents’ domestic situation.
In addition to providing specialized equipment that may be needed to transport students safely, a case from Michigan demonstrates that school boards may have to provide aides on vehicles. A federal trial court ordered a board to provide a trained aide to attend a student, who was medically fragile, when he was being transported.34 The court thought that under the IDEA, students with disabilities were entitled to transportation and incidents thereto.
Counseling, Psychological, and Social Work Services
The IDEA’s regulations define counseling as a service provided by a qualified social worker, psychologist, guidance counselor, or other qualified person.35 The definition of psychological services includes psychological counseling,36 while the definition of social work services includes group and individual counseling.37 On the other hand, the regulations neither use nor define the term psychotherapy. This is important, because while boards in most public school systems provide students with in-house counseling, psychological services, and social work services, there are many situations that call for such services to be provided by an outside vendor. School district employees and families would benefit from clarity in this regard.
Counseling, psychological, and social work services clearly are required related services only when needed by a student with a disability to benefit from special education. These may be required as related services for students with emotional difficulties who may not be able to benefit from their special education programs until their emotional problems are addressed.
One of the controversies that developed over the medical exclusion clause of the related services mandate concerns psychotherapy. Counseling, psychological, and social work services are clearly required related services only when students with disabilities need them to benefit from special education. While psychotherapy can be classified as a psychological service, in some situations it falls within the medical exclusion. Whether psychotherapy is a psychological or medical service depends on individual state laws governing psychotherapy. Put another way, some state laws stipulate that only psychiatrists can provide psychotherapy, while other states allow clinical psychologists to provide psychotherapy. Insofar as psychiatrists are licensed physicians, psychotherapy is an exempted medical service in states that allow only psychiatrists to provide it.
The distinguishing criterion regarding whether psychotherapy is a related service or an exempted medical service is how it is defined in a state law, not by whom it is actually provided. In Illinois, for instance, where state law allows nonpsychiatric professionals to provide psychotherapy, a federal trial court decided that a school board was responsible for the costs of psychotherapy even though the psychotherapy was actually provided by a psychiatrist.38 The court ruled that the criterion, that schools were not required to provide services that must be performed by a physician, did not mean that services that could be provided by a nonphysician, but were in actuality provided by a physician, were excluded. Still, the court indicated that the board was obligated to pay for the services only to the extent of the costs of their being performed by a nonphysician.
Counseling, psychotherapy, or social work services may be required as related services for students with emotional difficulties who may be unable to benefit from their special education programs until their emotional problems are addressed. The Supreme Court of Montana, turning to the dictionary for a definition of the term psychotherapy, found that according to Webster’s, psychotherapy is a psychological service. Thus, the court treated psychotherapy as a related service.39 The federal trial court in New Jersey also categorized psychotherapy as a counseling or psychological service, pointing out that it was a required related service.40
Federal trial courts in Illinois41 and Massachusetts,42 along with the Third Circuit,43 agreed that psychotherapy is a required related service because it assists some children in benefiting from their educational programs. Further, in Illinois, a federal trial court mandated that although psychotherapy is related to mental health, it may be required before a child can derive benefits from education. Similarly, the Third Circuit was persuaded that psychotherapy was an essential service that allowed an emotionally disturbed student in New Jersey to benefit from his educational program.
Since counseling is generally not considered to be a medical service, it may not be an exempted service. For example, the federal trial court in Connecticut was of the opinion that psychological and counseling services that a student with disabilities needed to benefit from his special education program were not embraced within the exempted medical services clause.44 The court posited that insofar as the therapy services offered as part of a residential placement were essential to render the child educable, they were required related services.
An important element in the requirement to provide related services is that they must be necessary for students to benefit from special education services. In a case addressing this issue, the Fourth Circuit remarked that counseling services were not required for a student from Virginia who made great improvement under an IEP that did not include counseling.45
If a therapeutic service can be classified as psychiatric, courts are likely to declare that it falls within the medical exception. The federal trial court for the District of Columbia decreed that the school board was not required to pay for the residential component costs of a placement in a psychiatric hospital and school, because the primary reasons for the child’s placement were medical, not educational.46 In like fashion, a federal trial court in Illinois concluded that psychiatric services are exempted medical services, because psychiatrists are licensed physicians.47 At least four other courts agreed that insofar as psychiatric facilities are medical facilities, school boards are not required to pay for the services that they offer.48 By the same token, the federal trial court in Connecticut asserted that psychiatric supervision to manage a student’s medication regimen was an exempted medical service.49
Psychiatric and other medical services are required as related services when they are for diagnostic or evaluative purposes. In the first of two cases from Tennessee, a federal trial court held that an evaluation by a neurologist was a related service.50 Five years later, another court acknowledged that the limited medical services a student received in a residential rehabilitation facility could not have been used to characterize her entire program as medical.51 The court contended that because medical services were provided to monitor and adjust the child’s medication, they were for diagnostic and evaluative purposes. Similarly, the federal trial court in Connecticut, recognizing that a student had not made academic progress, ordered a school board to conduct a psychiatric evaluation to evaluate his need for counseling.52 Further, the federal trial court in Hawaii was of the view that hospitalization costs were a significant part of a student’s diagnosis and evaluation as having a disability. Even though the student was hospitalized in response to a medical crisis, the court directed state officials to pay for the hospitalization, because it was an integral part of her overall evaluation.53
Whether placement in a facility that provides psychiatric services is primarily for medical or educational reasons may affect the costs that school boards are required to pay. Two cases from the Ninth Circuit, resolved only months apart, illustrate this point. In Clovis Unified School District v. California Office of Administrative Hearings,54 where a student was admitted to an acute care psychiatric hospital when the residential school she attended could no longer control her behavior, her parents unsuccessfully asked their school board to pay for this placement. In comparing the placement to one for a student suffering from a physical illness, the court thought that it had been made for medical reasons. The court was further convinced that the student’s room and board costs were medically related, not educationally related, because the hospital did not provide educational services. In Taylor v. Honig,55 also from California, after a student was placed in a residential school and psychiatric hospital for assaulting a family member, the court found that the residential facility was a boarding school that had the capacity to offer necessary medical services. According to the court, since the placement was made for primarily educational reasons, it was appropriate under the IDEA.
Physical, Occupational, and Speech Therapy
Occupational therapy (OT) refers to services to improve, develop, or restore functions impaired or lost through illness, injury, or deprivation or to improve the ability of students to perform tasks for independent functioning.56 OT also includes services to prevent the impairment or loss of functions through early intervention.
The IDEA’s regulations define physical therapy (PT) simply as the services provided by a qualified physical therapist.57 Speech-language pathology includes the identification, diagnosis, and appraisal of speech or language impairments and the provision of appropriate services for the habilitation or prevention of communication impairments.58
A federal trial court in New York ordered a school board to provide OT over the summer months when it realized that a student would have regressed in the areas of upper body strength and ambulation skills.59 The court added that the child’s ability to perform classroom work and to function in the classroom would have been adversely affected without the summer therapy. Conversely, the federal trial court for the District of Columbia believed that a proposed placement for a student with multiple disabilities was inappropriate, since it did not provide for an integrated OT program as called for in her IEP.60 The court maintained that the child did not need the program because she would not have benefited from her special education program even with this service. Even so, the amount of OT that students receive must be sufficient to confer educational benefit. In a case addressing this issue, a federal trial court in California upheld a hearing officer’s order directing a school board to provide additional OT to a student who had delays in all areas of development.61
Many school boards use the services of OT therapy assistants to provide services. A federal trial court in Tennessee upheld this practice on the basis that the assistants were well trained and helped the child to make progress.62 In addition, the court suggested that school boards are not required to maximize a student’s gains.
In a case from Pennsylvania, the Third Circuit decided that PT is an important facilitator of classroom learning for some children.63 Noting that the IDEA calls for an education that provides meaningful benefit, the court observed that physical therapy is an essential prerequisite for learning for some students with severe disabilities.
Insofar as the inability to communicate can effectively interfere with learning, speech and language therapy, when needed, is considered a related service. Although there has been no major litigation involving the need for speech or language therapy, it is safe to say that courts would likely require its delivery. Most school boards provide extensive speech and language therapy services; in some states it is considered to be a special education service rather than a related service.
Recreation and Enrichment Programs
The IDEA specifically identifies recreation and therapeutic recreation as related services.64 The definition of recreation in the IDEA’s regulations includes assessment of leisure function, recreation programs in schools and community agencies, and leisure education, along with therapeutic recreation.65 Moreover, the IDEA’s regulations specify that school boards must provide nonacademic and extracurricular services and activities to the extent necessary to afford students with disabilities opportunities for participation equal to those given to their peers without disabilities.66 Nonacademic and extracurricular services and activities may include lunch, recess, athletics, recreational activities, special interest groups or clubs, employment, and many of the items listed as related services. These activities must be provided in inclusive settings to the maximum extent appropriate.67
If students with disabilities are unable to participate in general extracurricular programs, school officials may need to provide them with special activities.68 Also, students who meet the eligibility requirements for participation in general extracurricular programs cannot be denied access to them under Section 504 of the Rehabilitation Act.69 School officials may thus need to provide reasonable accommodations to allow students with disabilities to participate in general extracurricular programs. For example, courts may waive eligibility rules that might prevent students from participating due to their disabilities.70
School officials may need to provide reasonable accommodations to allow students with disabilities to participate in general extracurricular programs. If students with disabilities are unable to participate in general extracurricular programs, school officials may need to develop special activities for these children.
A state court in Michigan affirmed that a school board had to provide a summer enrichment program to a student with autism where testimony revealed that he needed a program that included outdoor activities.71 The court directed the board to act in judging that the requested program fell within the parameters of special education and related services since physical education is included in the definition of special education, and recreation is a related service.
In like fashion, a federal trial court in Ohio issued a preliminary injunction ordering a school board to include participation in interscholastic athletics in a student’s IEP. The court relied on evidence that the student’s participation in sports resulted in academic, physical, and personal progress.72 On the other hand, a state court in New York refused to obligate a board to provide an afterschool program when such participation was unnecessary for the student to receive a free appropriate public education (FAPE).73
School Nurse Services
According to the IDEA’s regulations, school nurse services are those performed by qualified school nurses and are designed to enable students with disabilities to receive a FAPE.74 There has been controversy over the provision of health-related services in the schools because of the medical exclusion clause. To the extent that a number of medical procedures can be performed by registered nurses, questions have arisen as to whether selected nursing services fall within the definition of school health services or are exempted medical services. Figure 3.2 clarifies the difference between health services (which are required) and medical services (which are not required), as defined by the IDEA and interpreted by the courts.
Absent a disability requiring special education, the need for related services does not create an obligation under the IDEA. School officials must provide only those services that are necessary to aid students in benefiting from special education.
The United States Supreme Court, in Irving Independent School District v. Tatro,75 held that catheterization was a required related service for a student in Texas who could not voluntarily empty her bladder due to spina bifida. Acknowledging that the student had to be catheterized every three to four hours, the Court pointed out that services designed to allow a child to remain in class during the school day, such as catheterization, are no less related to the effort to educate than those that allowed her to reach, enter, or exit the school. The Court was satisfied that insofar as the catheterization procedure could have been performed by a school nurse or trained health aide, Congress did not intend to exclude it as a medical service, thereby clarifying when related services must be provided to students with disabilities. The Court ruled that absent a disability requiring special education, the need for related services did not create an obligation under the IDEA and that school officials must provide only those services that are necessary to aid students in benefiting from special education. The Court emphasized that a life support service would not be a related service if it did not need to be provided during school hours.
Figure 3.2 Difference Between Medical and Health Services
Medical services are those that can legally be provided only by licensed physicians. Under the IDEA, school boards are not responsible for providing medical services except when such services are required for diagnostic or evaluative purposes as part of the multidisciplinary evaluations that students undergo in the process of deciding whether they are eligible for special education and related services.
Health services are those that can be performed by school nurses, trained health aides, or other trained laypersons. Typically, students receive these services as part of the school nursing services provided by their boards. Other health procedures are included as long as they do not, by law, have to be provided by licensed physicians.
The Ninth Circuit affirmed that the school board in Hawaii was obligated to provide a student with cystic fibrosis with health services attendant to a tracheotomy tube even though the tube became dislodged occasionally and needed to be reinserted and mucus had to be suctioned from her lungs periodically.76 Again, where these procedures could have been performed by a school nurse or trained layperson, the court treated them as required related services.
Pursuant to an order from a federal trial court in Illinois, school boards must also provide nursing services during transportation.77 Previously, a federal trial court in Michigan noted that a board was required to provide an aide on a school bus to attend to a medically fragile student.78 The court observed that the provision of an aide or other health professional did not constitute an exempted medical service.
It is well settled that services that can be provided by school nurses, health aides, or even trained laypersons fall within the IDEA’s mandated related services clause. Even so, many students who attend school are fragile due to medical conditions, requiring the constant presence of nurses. The question has arisen as to whether school boards are required to pay for the services of full-time nurses for single students. Courts, in the past, have disagreed over whether full-time nursing services were more akin to exempted medical services than to required health services.79
The Supreme Court settled the controversy over school nursing services in 1999 in Cedar Rapids Community School District v. Garret F. (Garret F.).80 In affirming that a school board in Iowa was required to provide full-time nursing services for a student who was quadriplegic, the Court reasoned that although continuous services may be more costly and may require additional school personnel, this did not render them more medical. Recognizing that cost was not a factor in the definition of related services, the Court concluded that even costly related services must be provided to help guarantee that students with significant medical needs are integrated into the public schools. Garret F. clearly has the potential to have a major impact on school board budgets in light of the costs associated with the delivery of nursing services, whether for one child or groups of students.81
Diagnostic and Evaluative Services
The proper diagnosis and evaluation of students suspected of having disabilities is an important component of the special education process. Medical evaluations can be part of that process. The IDEA makes it clear that medical services can be related services when used for that purpose.82
In a case from Tennessee, a federal trial court declared that a school board had the duty to pay for a pediatrician-ordered neurological and psychological evaluation for a student.83 School personnel had requested that the pediatrician evaluate the child, who had a seizure disorder, visual difficulties, and learning disabilities, after his behavior and school performance deteriorated. The pediatrician referred the child to a neurologist who subsequently referred him to a psychologist. When a dispute arose over who was responsible for paying for the neurological and psychological evaluations, the court maintained that insofar as the child’s needs were intertwined, these evaluations were necessary for him to benefit from his special education. In language that should be of interest to school officials elsewhere, the court explained that the child’s parents could have been required to use their health insurance to pay for the evaluations as long as they did not incur any costs in doing so. Since the parents’ policy placed a lifetime cap on psychological services that would have been reduced by the amount of the evaluation bill, the court decided that the board was responsible for payment. While no such cap existed for neurological services, the court indicated that the parents were required to use their insurance for that evaluation.
The term diagnostic and evaluative services does not refer only to assessments that may be conducted as part of initial evaluations. According to a federal trial court in Tennessee, the ongoing monitoring of a student’s condition could fall within the realm of diagnostic and evaluative services.84 The court pointed out that insofar as the medical services at issue, which were designed to monitor and adjust the student’s medication, were for diagnostic and evaluation purposes, the school board was responsible for paying for them.
As indicated, the Ninth Circuit upheld an order directing the school board in Hawaii to pay for hospitalization costs that were a significant part of a student’s diagnosis and evaluation as disabled.85 The dispute arose after the child’s stay in the hospital triggered, and was an integral part of, her diagnosis and evaluation. The court ascertained that preplacement medical costs limited to diagnosis and evaluation are recoverable where a student is subsequently found to have qualified for special education services.
Substance Abuse Prevention and Treatment
Conceding that Congress did not intend to create a federal claim for every activity or type of conduct that could impede the ability of students to take advantage of educational opportunities, a federal trial court in California refused to interpret drug prevention treatment as a related service under the IDEA.86 The case arose after a student who attended a private school ingested an illegal substance and his parents unsuccessfully alleged that educational officials tolerated the use of illegal drugs on campus.
School boards are not required to provide substance abuse programs under the related services mandate if these intervention programs follow a medical model.87 The federal trial court in New Jersey decreed that a substance abuse program does not fall within the domain of related services that must be provided under the IDEA, even though it would benefit learning.88 When a special education student who attended a private school was expelled for drug possession, officials informed his parents that their son could return if he attended a substance abuse program. After the board refused to pay for the program, the parents unsuccessfully filed suit. The court rejected the parental claim because the student was not entitled to public payment for the program, since it was medical to the extent that it consisted of psychiatric counseling, physical examinations, and administration of medication.
A substance abuse program that is not primarily medical could be a required related service. The IDEA’s regulations make it clear that insofar as counseling, psychological, and social work services are required related services, a substance abuse program primarily utilizing one of these services could be a required related service.
Habilitation Services
The Fourth Circuit affirmed that in-home habilitation services do not fall within the definitions of special education and related services.89 Parents had requested the services, which were primarily designed to help control their son’s behavior at home, when he returned to the family home in North Carolina after attending a residential program. The court noted that the child made educational progress without the requested services. On the other hand, a federal trial court in Georgia posited that vision therapy is a required related service because the student’s vision problems impacted his future ability to benefit from special education.90 In affirming the initial order, the Eleventh Circuit agreed that without the vision therapy, the child’s problems would have become much worse.
Cochlear Mapping
The IDEA now includes an exception to exclude surgically implanted medical devices or their replacements from its definition of related services.91 Following the passage of the amendments adding this exception, the U.S. Department of Education promulgated regulations excluding cochlear mapping from the definition of related services.92 Shortly after the implementation of those regulations, a federal trial court in Tennessee ruled that a school board was not required to pay for cochlear mapping, observing that the IDEA’s regulations made it clear that programming of cochlear implants was not a service that school boards must provide.93
In a suit challenging the regulations regarding cochlear mapping, the federal trial court in the District of Columbia insisted that the regulation did not contravene the clear meaning of the IDEA.94 The court acknowledged that Congress had not spoken directly to the question of whether cochlear mapping constituted a related service but, nevertheless, thought that the department was entitled to deference regarding its position, since it represented a permissible construction of the statute. The District of Columbia Circuit affirmed, agreeing that the regulations embodied a permissible construction of the IDEA, because they were rationally related to the underlying objectives of the statute.
Physical Plant Alterations
Boards may be required to alter the physical plants of schools in order to allow students with disabilities to participate fully in and benefit from their educational programs. Most of these alterations allow access to school buildings. A case from Texas reflects the notion that modifications may be required to allow students to remain in classrooms. A federal trial court ordered a board to provide an air-conditioned classroom for a student who, due to brain injuries that he suffered in an accident, could not regulate his body temperature and thus required a temperature-controlled environment at all times.95 While the board provided the student with an air-conditioned Plexiglas cubicle, and he achieved satisfactory academic progress, he had a limited ability to socialize and participate in group activities. The court pointed out that the use of the cubicle violated the LRE mandate, because it caused the student to miss out on the class participation and group interactions that were important to his education.
At the same time, boards are not required to make alterations to all school buildings within their districts in order to make them accessible to students with disabilities. In an illustrative case, the Eighth Circuit affirmed that a board in Minnesota complied with the IDEA by offering parents a placement for their daughter in an accessible school that was reasonably close to the family home.96 The parents filed suit on behalf of their daughter, who used a wheelchair, seeking to require the board to modify her neighborhood school to make it accessible. The record revealed that three other schools in the district were wheelchair accessible and that the board offered the parents a placement for their daughter in one that was four miles from her home. The court upheld this arrangement, recognizing that by busing the student to a nearby school, board officials provided her with a fully integrated education and that nothing in the IDEA required officials to place her in the school closest to her home.
Parent Training and Counseling
As defined in the IDEA’s regulations, parent training and counseling means assisting parents to understand the special needs of their children and provide them with information about child development.97 Courts sometimes order residential placements for students who require consistency and support that is not available in the home environment. Less restrictive placements can be appropriate if parents are trained to deal with their children appropriately in their homes, using techniques similar to those that are used at school. Yet, avoidance of a residential placement is not the sole criterion for providing parent training and counseling.
A federal trial court in Texas wrote that an appropriate placement could be provided within a public school setting for a student with severe disabilities if her parents received training and counseling, thereby averting the need for a residential placement.98 The court observed that the child required a highly structured educational program that needed to be maintained year-round. In order to preserve that structure after school hours, the court ordered board officials to provide the child’s parents with training in behavioral techniques. In addition, the court directed educational officials to offer counseling to help relieve the stress of the burdensome demands that the child’s disability placed on her parents. Similarly, a federal trial court in Alabama ordered a board to provide training and counseling to the parents of a student who exhibited academic and behavioral problems.99 Stating that the student’s overall IEP was not appropriate, the court noted that educators ignored a crucial component of a behavioral control program by failing to counsel and instruct the parents in how to reinforce the training the child received at school in their home.
As with all special education and related services, school boards are not required to provide an optimal level of parent training and counseling. Recognizing that a school board was not obligated to provide every possible service or the very best education that might be desired, a federal trial court in Texas found that an IEP that reduced the amount of scheduled at-home parent training sessions did not deny a child with multiple disabilities a FAPE.100
Along the same line, a federal trial court in Connecticut held that the IDEA did not require a school board to provide a 24-hour crisis plan, respite care for the family, and an in-home mentor in the IEP of a student who had a long history of behavior problems.101 The court agreed with a hearing officer that these services were not related services under the IDEA, and that they were not necessary since the student had made academic progress without them.
Residential Placements and Lodging
Many students with disabilities require placements in residential schools or facilities in order to receive a FAPE. In some cases, residential placements are called for, because children need instructional services on a round-the-clock basis in order to receive an appropriate education. In other situations, students who do not necessarily require 24-hour-per-day instruction must remain at such schools on a residential basis, since they are the only facilities that can provide an appropriate education and are not within commuting distance of the students’ homes. Under these circumstances, school boards must still pay for the room-and-board portion of residential placements, as such arrangements are considered to be a related service.
According to the IDEA’s regulations, if a residential program “is necessary to provide special education and related services to a child with a disability, the program, including nonmedical care and room and board, must be at no cost to the parents of the child.”102 This regulation applies whether the residential portion of the placement is needed for educational reasons or access reasons. When students are placed in residential facilities that have a psychiatric component, the medical and educational components often can be intricately intertwined. Nevertheless, in a case from Texas, the Fifth Circuit explained that courts must examine each part of placements and weed out the costs that are reimbursable from those that are not.103
Boards may be required to provide off-campus lodging to students with disabilities if appropriate arrangements cannot be made for them to live at their schools and the schools are located too far from home to commute.104 This can occur when the schools that students attend either do not offer residential components or do not have any room for children in their residential programs but have openings in their day programs.
Residential placements are not considered to be related services if their sole purpose is to provide confinement. Explaining that it stretches the IDEA too far to classify confinement as a related service, the Seventh Circuit decided that a student from Illinois whose problems were not primarily educational did not require a residential placement at public expense.105
Teacher Training
Realizing that the IDEA’s list of related services is not all-inclusive, the Supreme Court of South Dakota refused to order a school board to include specific teacher training in the IEP of a student with autism.106 In so doing, the court rejected the mother’s request to include a provision in her son’s IEP calling for his teachers to be trained in a specified instructional methodology. The court affirmed that insofar as teacher competency is in the control of school administrators, a parent cannot dictate how teachers are to be prepared or how their competency is to be measured.
Assistive Technology
Assistive technology may be provided as a special education service, a related service, or a supplementary aid and service. Assistive technology is required when it is necessary for students to receive FAPEs under the standard established by the Supreme Court in Board of Education of the Hendrick Hudson School District v. Rowley.107 Further, because assistive technology may allow many students with disabilities to benefit from education in less restrictive settings, it may be required under the IDEA’s LRE mandate. Still, school boards are not required to provide assistive technology when students are able to receive meaningful educational benefit, and thus a FAPE, without this service.108
Assistive technology may allow many students with disabilities to benefit from education in less restrictive settings.
IEP teams must consider whether children require assistive technology devices and services in order to receive FAPEs.109 If teams determine that students need assistive technology, then they must write this into the students’ IEPs. Even so, the IDEA does not require teams to document that they considered providing students with assistive technology devices and services but did not think that they were needed.
The IDEA specifically requires school boards to ensure that assistive technology devices and services are made available to students if either or both are required as part of the children’s special education, related services, or supplementary aids and services.110 The IDEA calls for the use of school-provided assistive technology devices in the homes of students if their IEP teams decide that they need access to assistive technology in order to receive a FAPE.111
In explanatory material accompanying the 1999 IDEA regulations, the Department of Education made it clear that school boards are not required to provide personal devices, such as eyeglasses, hearing aids, and braces that students would require regardless of whether they attended school.112 In one case the federal trial court in Connecticut ruled that a school board was not obligated to provide a myoelectric prosthesis for a student who was born with an amputated arm below her left elbow.113 Of course, nothing prohibits boards from providing students with these items. Further, based on federal regulations, students with disabilities are entitled to have access to any general technology that is available to peers who are not disabled. When students with disabilities require accommodations in order to use general technology, educators must make sure to provide these modifications.114
In an illustrative case, a federal trial court in Pennsylvania declared that a school board’s provision of assistive technology to a student with multiple disabilities was inadequate.115 The court was of the view that the student required a laptop computer with appropriate software but that school personnel wasted nearly a year before obtaining and setting up the device. Further, the court faulted the board’s chosen software program and keyboarding instruction. In Maryland, the federal trial court upheld a hearing officer’s order directing board officials to provide a student with appropriate software to use at home and school along with instruction about its use.116 Of course, school personnel often have a variety of options when selecting the type of assistive technology to provide for students. As with the delivery of special education services, the choice of methodology is up to educators.117
A case from New York highlights the point that an assistive technology device should aid students in receiving a FAPE by mitigating the effects of their disabilities but should not circumvent the learning process. Although a student with learning disabilities that affected his ability in mathematics was allowed to use a calculator, educators denied his request to use a more advanced calculator on the ground that doing so would have circumvented the learning process. The Second Circuit affirmed a New York hearing offer’s adjudication that officials provided the student with appropriate assistive technology and that the more advanced calculator was not needed.118
In order to provide appropriate assistive technology, school personnel must conduct timely evaluations to assess student needs.119 An assistive technology evaluation should identify students’ areas of need and assess whether assistive technology is needed to provide educational benefits.120 On the other hand, since assistive technology is required only when needed for students to receive a FAPE, it is unnecessary to assess children for assistive technology when it is clear that they can receive meaningful educational benefit without assistive technology.121
School boards have the duty to provide assistive technology, when needed, and must train all stakeholders to use the devices. However, boards cannot be rendered liable if students fail to take advantage of what has been offered. Courts have refused to impose liability on boards when educators supply appropriate assistive technology but students do not use the devices or services.122 Even so, it is important for boards to provide appropriate training for students and teachers in the use of devices, assist them in using technology properly, and provide follow-up support. If students fail to use the supplied technology due to a lack of training, boards will be accountable.
Transition Services
Pursuant to the IDEA, school boards must provide transition services to students with disabilities in order to facilitate their passages from school to postschool activities.123 Transition services not only involve instruction and training but may also encompass related services.124 While transition plans must be included in the IEPs of all students once they reach the age of 16, the First Circuit affirmed that this requirement does not mandate a stand-alone plan.125 The court agreed that an IEP developed by a school in New Hampshire that integrated transition services throughout a child’s program met the IDEA’s standard.
The federal trial court in Connecticut reasoned that a 20-year-old student was entitled to instruction in community and daily living skills because this instruction fell within the ambit of transition services.126 In Pennsylvania, a federal trial court, observing that transition services should be designed to prepare a student for life outside the school system, recognized that providing him with only vocational evaluations and training was insufficient, as these services did not meet all of his needs.127
In Hawaii, the federal trial court approved a coordinated set of activities that were clearly designed to promote a student’s movement from school to postschool activities. These activities, which were written into the student’s IEP, were aimed at assisting him in completing high school, becoming part of his community, exploring careers and colleges, and meeting with vocational counselors.128 Similarly, a federal trial court in Louisiana found that transition plans detailing desired adult outcomes, including school action steps and family action steps, were appropriate.129
A federal trial court in Wisconsin approved an IEP containing detailed transition statements, including suggested courses of study, instruction, employment, postschool adult living, daily living, community experiences, functional vocational assessments, and related services. Conversely, the federal trial court in Hawaii rejected a transition plan that failed to include measurable postsecondary goals and did not include a statement of transition services needed to assist the student in reaching those goals as failing to comply with the IDEA’s requirements.130
Frequently Asked Questions
Q: Medical services are exempted from the related services provision of the IDEA. When do health-related services become medical services?
A: Medical services, by definition, are those that by law, can be provided only by licensed physicians. State law is important in this regard since it typically dictates the requirements for persons who provide specified services. For example, in some states only psychiatrists may provide psychotherapy while in others clinical psychologists or licensed clinical social workers may do so.
Q: Why are school boards required to provide health services?
A: Health services may be equated to modifications to physical plants that allow students with disabilities to access educational programs: Many students cannot be physically present in classrooms without these services. For instance, students who require catheterization every three to four hours may be unable to attend school for a typical six-hour day unless school officials provide catheterization.
Q: Are school boards required to provide substance abuse programs to students with disabilities who have drug or alcohol problems?
A: Since school boards are required to provide counseling and social work services, substance abuse programs utilizing counseling or social work models could be required as a related service. However, boards are not responsible for any such programs that follow a medical model.
Q: When are school boards obligated to provide special transportation for students with disabilities?
A: School boards must provide special transportation arrangements when the disabilities of students call for such services. If students are able to access regular transportation, special transportation is not required. For example, students with hearing impairments, under most circumstances, should be able to ride regular school buses. On the other hand, students in wheelchairs may need vehicles equipped to accommodate their wheelchairs.
Q: Are school boards required to provide transportation to day care centers or other afterschool caretakers?
A: School boards are required to provide transportation to day care centers or other afterschool caretakers for students with disabilities to the same extent that they provide such transportation to students who are not disabled. Boards should develop policies regarding transportation to locations other than the homes of students. School officials must apply these policies equally to all students, regardless of the students’ disability status.
Q: Are school boards required to provide students with special extracurricular activities?
A: Under Section 504, students with disabilities are entitled to access regular extracurricular activities as long as they are otherwise qualified to participate in them with reasonable accommodations. If participation in extracurricular activities assists students in benefiting from their special education programs, such activities can be a required related service. School officials may need to provide special programs if students are unable to participate in regular extracurricular offerings.
Q: Under what circumstances are school boards required to provide assistive technology to students with disabilities?
A: School boards are required to provide assistive technology when it is necessary for students to receive educational benefit from their special education programs. When boards are able to provide FAPEs without assistive technology, they are not required to add assistive technology to student IEPs.
Q: What types of transition services are school boards required to provide to students over the age of 16?
A: The purpose of transition services is to help students with disabilities move from school to postschool activities. As with special education and related services, the provision of transition services is individualized and must be tailored to the unique needs of each individual student. Transition plans should include goals and objectives along with the specific services to be provided to meet these goals and objectives.
Endnotes
1. 20 U.S.C. §§ 1400–1482 (2012). The IDEA’s regulations can be found at Assistance to the States for the Education of Children with Disabilities, 34 C.F.R. §§ 300.1–300.818 (2013).
2. 20 U.S.C. §§ 1400(c)(5)(D), (d)(1)(A), 1401(3)(A)(i).
3. 20 U.S.C. § 1401(26)(A).
4. 20 U.S.C. § 1401(20)(B).
5. 34 C.F.R. § 300.34(b).
6. 34 C.F.R. § 300.34(b)(2).
7. Russo, C. J., Osborne, A. G., & Borreca, E. A. (2006). What’s changed? A side-by-side analysis of the 2006 and 1999 Part B regulations. Horsham, PA: LRP Publications.
8. 468 U.S. 883 (1984).
9. Id. at 894.
10. Id.
11. 34 C.F.R. § 300.34.
12. See, e.g., K.C. ex rel. Her Parents v. Nazareth Area School District, 806 F. Supp. 2d 806 (E.D. Pa. 2011) (finding that the board had provided appropriate executive functioning coaching for the student’s needs).
13. 20 U.S.C. § 1401(1)(A).
14. 20 U.S.C. § 1401(1)(B).
15. Osborne, A. G. (2012). Providing assistive technology to students with disabilities under the IDEA. Education Law Reporter, 280, 519–533.
16. 20 U.S.C. § 1401(2).
17. 34 C.F.R. § 300.105(a).
18. 20 U.S.C. §§ 1401(33), 1412(a)(5).
19. 20 U.S.C. § 1401(34).
20. 20 U.S.C.A. § 1414(d)(1)(A)(i)(VIII).
21. 34 C.F.R. § 300.34(c)(16)(iii).
22. In several New England states, such as Rhode Island, school boards are known as school committees.
23. Hurry v. Jones, 560 F. Supp. 500 (D.R.I. 1983), affirmed in part, reversed in part 734 F.2d 879 (1st Cir. 1984). See also District of Columbia v. Ramirez, 377 F. Supp. 2d 63 (D.D.C. 2005) (directing the board to provide an aide to convey a student from his apartment to his school bus).
24. Malehorn v. Hill City School District, 987 F. Supp. 772 (D.S.D. 1997).
25. Union School District v. Smith, 15 F.3d 1519 (9th Cir. 1994).
26. Cohen v. School Board of Dade County, 450 So. 2d 1238 (Fla. Dist. Ct. App. 1984).
27. DeLeon v. Susquehanna Community School District, 747 F.2d 149 (3d Cir. 1984).
28. Pinkerton v. Moye, 509 F. Supp. 107 (W.D. Va. 1981).
29. School Board of Pinellas County v. Smith, 537 So. 2d 168 (Fla. Dist. Ct. App. 1989).
30. Alamo Heights Independent School District v. State Board of Education, 790 F.2d 1153 (5th Cir. 1986).
31. Fick ex rel. Fick v. Sioux Falls School District, 337 F.3d 968 (8th Cir. 2003).
32. Ms. S. ex rel. L.S. v. Scarborough School Committee, 366 F. Supp. 2d 98 (D. Me. 2005).
33. North Allegheny School District v. Gregory P., 687 A.2d 37 (Pa. Commw. Ct. 1996).
34. Macomb County Intermediate School District v. Joshua S., 715 F. Supp. 824 (E.D. Mich. 1989).
35. 34 C.F.R. § 300.34(c)(2).
36. 34 C.F.R. § 300.34(c)(10)(v).
37. 34 C.F.R. § 300.34(c)(14)(ii).
38. Max M. v. Thompson, 566 F. Supp. 1330 (N.D. Ill. 1983), 585 F. Supp. 317 (N.D. Ill. 1984), 592 F. Supp. 1437 (N.D. Ill. 1984), 592 F. Supp. 1450 (N.D. Ill. 1984), 629 F. Supp. 1504 (N.D. Ill. 1986).
39. In re A Family, 602 P.2d 157 (Mont. 1979).
40. T.G. and P.G. v. Board of Education of Piscataway, 576 F. Supp. 420 (D.N.J. 1983).
41. Gary B. v. Cronin, 542 F. Supp. 102 (N.D. Ill. 1980).
42. Doe v. Anrig, 651 F. Supp. 424 (D. Mass. 1987).
43. T.G. and P.G. v. Board of Education of Piscataway, 576 F. Supp. 420 (D.N.J. 1983), affirmed 738 F.2d 425 (3d Cir. 1984).
44. Papacoda v. State of Connecticut, 528 F. Supp. 68 (D. Conn. 1981).
45. Tice v. Botetourt County School Board, 908 F.2d 1200 (4th Cir. 1990). See also W.T. and K.T. ex rel. J.T. v. Board of Education of School District of New York, 716 F. Supp. 2d 270 (S.D.N.Y. 2010) (deciding that a child did not require counseling to make academic progress).
46. McKenzie v. Jefferson, EHLR 554:338 (D.D.C. 1983).
47. Darlene L. v. Illinois Board of Education, 568 F. Supp. 1340 (N.D. Ill. 1983).
48. Tice v. Botetourt County School Board, 908 F.2d 1200 (4th Cir. 1990); Clovis Unified School District v. California Office of Administrative Hearings, 903 F.2d 635 (9th Cir. 1990); Doe v. Anrig, 651 F. Supp. 424 (D. Mass. 1987); Metropolitan Government of Nashville and Davidson County v. Tennessee Department of Education, 771 S.W.2d 427 (Tenn. Ct. App. 1989).
49. M.K. ex rel. Mrs. K. v. Sergi, 554 F. Supp. 2d 201 (D. Conn. 2008).
50. Seals v. Loftis, 614 F. Supp. 302 (E.D. Tenn. 1985).
51. Brown v. Wilson County School Board, 747 F. Supp. 436 (M.D. Tenn. 1990).
52. J.B. v. Killingly Board of Education, 990 F. Supp. 57 (D. Conn. 1997).
53. Department of Education, State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190 (D. Haw. 2001).
54. 903 F.2d 635 (9th Cir. 1990).
55. 910 F.2d 627 (9th Cir. 1990).
56. 34 C.F.R. § 300.34(c)(6).
57. 34 C.F.R. § 300.34(c)(9).
58. 34 C.F.R. § 300.34(c)(15).
59. Holmes v. Sobol, 690 F. Supp. 154 (W.D.N.Y. 1988).
60. Kattan v. District of Columbia, 691 F. Supp. 1539 (D.D.C. 1988).
61. Glendale Unified School District v. Almasi, 122 F. Supp. 2d 1093 (C.D. Cal. 2000).
62. Metropolitan Nashville and Davidson County School System v. Guest, 900 F. Supp. 905 (M.D. Tenn. 1995).
63. Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988).
64. 20 U.S.C. § 1401(26)(A).
65. 34 C.F.R. § 300.34(c)(11).
66. 34 C.F.R. § 300.107.
67. 34 C.F.R. § 300.117.
68. See Dear Colleague Letter, Assistant Secretary for Civil Rights, U.S. Department of Education, available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.pdf.
69. Rehabilitation Act, Section 504, 29 U.S.C. § 794 (2006).
70. Osborne, A. G., & Battaglino, L. (1996). Eligibility of students with disabilities for sports: Implications for policy. Education Law Reporter, 105, 379–388.
71. Birmingham and Lamphere School Districts v. Superintendent of Public Instruction, 328 N.W.2d 59 (Mich. Ct. App. 1982).
72. Kling v. Mentor Public School District, 136 F. Supp. 2d 744 (N.D. Ohio, 2001). See also Independent School District No. 12, Centennial v. Minnesota Department of Education, 788 N.W.2d 907 (Minn. 2010) (directing an IEP team to evaluate whether an extracurricular or nonacademic activity was appropriate for a student with disabilities and which supplementary aids and services were appropriate and necessary for participation in these activities).
73. Roslyn Union Free School District v. University of the State of New York, State Education Department, 711 N.Y.S.2d 582 (N.Y. App. Div. 2000).
74. 34 C.F.R. § 300.34(c)(13).
75. 468 U.S. 883 (1984).
76. Department of Education, State of Hawaii v. Katherine D., 531 F. Supp. 517 (D. Haw. 1982), affirmed 727 F.2d 809 (9th Cir. 1983). Hawaii has only one school board for the entire state.
77. Skelly v. Brookfield LaGrange Park School District 95, 968 F. Supp. 385 (N.D. Ill. 1997).
78. Macomb County Intermediate School District v. Joshua S., 715 F. Supp. 824 (E.D. Mich. 1989).
79. Osborne, A. G. (1999). Supreme Court rules that schools must provide full-time nursing services for medically fragile students. Education Law Reporter, 136, 1–14.
80. 526 U.S. 66 (1999).
81. For a commentary on this case see Russo, C. J. (1999). Cedar Rapids Community School District v. Garret F.: School districts must pay for nursing services under the IDEA. School Business Affairs, 65(6), 35–38.
82. 34 C.F.R. § 300.34(c)(5).
83. Seals v. Loftis, 614 F. Supp. 302 (E.D. Tenn. 1985).
84. Brown v. Wilson County School Board, 747 F. Supp. 436 (M.D. Tenn. 1990).
85. Department of Education, State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190 (D. Haw. 2001).
86. Armstrong ex rel. Steffensen v. Alicante School, 44 F. Supp. 2d 1087 (E.D. Cal. 1999).
87. Wenkart, R. D. (2000). Juvenile offenders: Residential placement and special education. Education Law Reporter, 144, 1–13.
88. Field v. Haddonfield Board of Education, 769 F. Supp. 1313 (D.N.J. 1991).
89. Burke County Board of Education v. Denton, 895 F.2d 973 (4th Cir. 1990).
90. DeKalb County School District v. M.T.V. ex rel. C.E.V., 413 F. Supp. 2d 1322 (N.D. Ga. 2005), affirmed 164 F. App’x 900 (11th Cir. 2006).
91. 20 U.S.C. § 1401(20)(B).
92. 34 C.F.R. § 300.34(b).
93. A.U. ex rel. N.U. and B.U. v. Roane County Board of Education, 501 F. Supp. 2d 1134 (E.D. Tenn. 2007).
94. Petit v. U.S. Department of Education, 578 F. Supp. 2d 145 (D.D.C. 2008), 756 F. Supp. 2d 11 (D.D.C. 2010), affirmed 675 F.3d 769 (D.C. Cir. 2012).
95. Espino v. Besteiro, 520 F. Supp. 905 (S.D. Tex. 1981).
96. Schuldt v. Mankato Independent School District No. 77, 937 F.2d 1357 (8th Cir. 1991).
97. 34 C.F.R. § 300.34(c)(8).
98. Stacey G. v. Pasadena Independent School District, 547 F. Supp. 61 (S.D. Tex. 1982), vacated and remanded on other grounds 695 F.2d 949 (5th Cir. 1983).
99. Chris D. v. Montgomery County Board of Education, 753 F. Supp. 922 (M.D. Ala. 1990). See also P.K. and T.K. ex rel. S.K. v. New York City Department of Education, 819 F. Supp. 2d 90 (E.D.N.Y. 2011) (declaring that not providing parent training and counseling to the parents of a student with severe autism was likely to lead to regression).
100. Clear Creek Independent School District v. J.K., 400 F. Supp. 2d 991 (S.D. Tex. 2005).
101. M.K. ex rel. Mrs. K. v. Sergi, 554 F. Supp. 2d 201 (D. Conn. 2008).
102. 34 C.F.R. § 300.104.
103. Richardson Independent School District v. Michael Z., 580 F.3d 286 (5th Cir. 2009).
104. Union School District v. Smith, 15 F.3d 1519 (9th Cir. 1994); Ojai Unified School District v. Jackson, 4 F.3d 1467 (9th Cir. 1993).
105. Dale M. v. Board of Education of Bradley-Bourbonnais High School District No. 307, 237 F.3d 813 (7th Cir. 2001).
106. Sioux Falls School District v. Koupal, 526 N.W.2d 248 (S.D. 1994).
107. 458 U.S. 176 (1982).
108. Smith v. District of Columbia, 846 F. Supp. 2d 197 (D.D.C. 2012); J.C. ex rel. Mr. and Mrs. C. v. New Fairfield Board of Education, 2011 WL 1322563 (D. Conn. 2011); High v. Exeter Township School District, 2010 WL 363832 (E.D. Pa. 2010); School Board of Lee County v. M.M. ex rel. M.M.II, 2007 WL 983274 (M.D. Fla. 2007).
109. 34 C.F.R. § 300.324(a)(2)(v). For a comprehensive treatment of this topic, see Osborne, A. G. (2012). Providing assistive technology to students with disabilities under the IDEA. Education Law Reporter, 280, 519–533.
110. 34 C.F.R. § 300.105(a).
111. 34 C.F.R. § 300.105(b).
112. Assistance to the States for the Education of Children with Disabilities: Appendix B., 64 Fed. Reg. 12,405, 12,540 (Mar. 12, 1999).
113. J.C. ex rel. Mr. and Mrs. C. v. New Fairfield Board of Education, 2011 WL 1322563 (D. Conn. 2011).
114. Id.
115. East Penn School District v. Scott B., 1999 WL 178363 (E.D. Pa. 1999).
116. Board of Education of Harford County v. Bauer, 2000 WL 1481464 (D. Md. 2000).
117. Miller v. Board of Education of the Albuquerque Public Schools, 455 F. Supp. 2d 1286 (D.N.M. 2006), affirmed 565 F.3d 1232 (10th Cir. 2009).
118. Sherman v. Mamaroneck Union Free School District, 340 F.3d 87 (2d Cir. 2003).
119. Woods ex rel. T.W. v. Northport Public Schools, 2011 WL 1230813 (W.D. Mich. 2011), affirmed 487 F. App’x 968 (6th Cir. 2012); Jaccari J. v. Board of Education of Chicago, District N. 209, 690 F. Supp. 2d 687 (N.D. Ill. 2010); Blake C. ex rel. Tina F. v. Department of Education, State of Hawaii, 593 F. Supp. 2d 1199 (D. Haw. 2009); Kevin T. v. Elmhurst Community School District No. 205, 2002 WL 433061 (N.D. Ill. 2002); School Board of Independent School District No. 11 v. Pachl, 2002 WL 32653752 (D. Minn. 2002).
120. A.L. ex rel. L.L. v. Chicago Public School District No. 299, 2011 WL 5828209 (N.D. Ill. 2011).
121. Grant ex rel. Sunderlin v. Independent School District No. 11, 2005 WL 1539805 (D. Minn. 2005).
122. T.G. ex rel. Mr. & Mrs. T.G. v. Midland School District, 848 F. Supp. 2d 902 (C.D. Ill. 2012); C.G. ex rel. E.B. v. Pittsfield Central School District, 2010 WL 1533392 (W.D.N.Y. 2010); Schroll v. Board of Education Champaign Community Unit School District #4, 2007 WL 2681207 (C.D. Ill. 2007).
123. 20 U.S.C. § 1414(d)(1)(A).
124. 20 U.S.C. § 1401(34); 34 C.F.R. § 300.43.
125. Lessard v. Wilton Lyndeborough Cooperative School District, 518 F.3d 18 (1st Cir. 2008).
126. J.B. v. Killingly Board of Education, 990 F. Supp. 57 (D. Conn. 1997).
127. East Penn School District v. Scott B., 1999 WL 178363 (E.D. Pa. 1999).
128. Browell v. LeMahieu, 127 F. Supp. 2d 1117 (D. Haw. 2000).
129. Pace v. Bogulusa City School Board, 137 F. Supp. 2d 711 (E.D. La. 2001), affirmed 325 F.3d 609 (5th Cir. 2003).
130. Carrie I. ex rel. Greg I. v. Department of Education, State of Hawaii, 869 F. Supp. 2d 1225 (D. Haw. 2012).
Due Process Procedures for Evaluation, Development of IEPs, and Placement
Key Concepts in This Chapter
• Requirements for Student Evaluation and Assessment
• Process of Developing IEPs
• IDEA’s Status Quo Provision
The Individuals with Disabilities Education Act (IDEA)1 is unique in providing an elaborate system of procedural due process safeguards to ensure that students with disabilities are properly identified, evaluated, and placed according to its dictates.2 The IDEA’s safeguards are designed to make parents and/or guardians equal partners with school officials in the education of their children. Never before has the law afforded parents such explicit rights to protect the education of their children.
The IDEA requires school officials to work with parents to develop individualized education programs (IEPs) for all children in need of special education and related services.3 In fact, the IDEA’s regulations add that states, through local school boards or other agencies and officials, must provide parents of students with disabilities with opportunities to participate in the development of IEPs for their young.4
Prior to the passage of the IDEA, school personnel typically made placement decisions for students with disabilities without considering either their wishes or those of their parents. Unfortunately, allowing school personnel to make unilateral placement decisions for students with disabilities, especially those who were difficult to educate, led to the exclusion of significant numbers of these children from many school activities.
The IDEA and its regulations ensure that school officials cannot act without parental knowledge or informed parental consent prior to conducting evaluations5 or making initial placements.6 Moreover, the IDEA specifies that parental consent for initial evaluations cannot be treated as consent for placements and receipt of special education and related services.7 The IDEA also directs educators to provide parents with prior written notice whenever they propose or refuse to initiate changes after making original placements.8
The importance of procedural compliance cannot be overemphasized because the Supreme Court ruled in Board of Education of the Hendrick Hudson Central School District v. Rowley that an educational program is not appropriate unless it is developed according to the IDEA’s procedures.
This chapter examines the IDEA’s due process mechanisms relating to the identification, evaluation, and placement of students with disabilities. The importance of procedural compliance cannot be overemphasized because the Supreme Court ruled in Board of Education of the Hendrick Hudson Central School District v. Rowley 9 that an educational program is not appropriate unless it is developed according to the IDEA’s procedures.
Evaluation Procedures
The IDEA, in an approach that makes it different from other education-related laws, places an affirmative obligation on states, through local school boards and their officials, to establish procedures to ensure that all children with disabilities are properly identified and evaluated to determine whether they are entitled to receive special education and related services.10 This means that officials must conduct full initial evaluations before providing students with special education and related services.11 Once students are identified as being in need of special education and related services, their IEPs must be reviewed at least annually12 and reevaluated at least once every three years unless their parents and local school officials agree that re-evaluations are unnecessary.13
Due to ongoing difficulties with regard to the overrepresentation of minority students,14 the current version of the IDEA includes a provision addressing the status of children based on race and ethnicity that is worth reviewing before turning to the substance of the law’s evaluation procedures. The IDEA requires states and local school board officials to develop policies and procedures to prevent the overidentification or disproportionate representation by race and ethnicity of children with disabilities.15 In addition, this provision obligates educators to record the number of students from minority groups who are in special education classes and to provide early intervention services for children in groups deemed to be overrepresented.
In a related provision, the IDEA directs educators to examine data, including information disaggregated by race and ethnicity, to consider whether there are significant discrepancies in the rate of long-term suspensions and expulsions of student with disabilities.16 The IDEA further mandates that officials review, and if appropriate, revise, policies, procedures, and practices related to the implementation of IEPs. At the same time, the IDEA obligates educators to use positive behavioral interventions and supports as well as procedural safeguards to ensure their compliance with the law17 in avoiding this problem.
According to the IDEA, school officials must complete evaluations of students suspected of having disabilities within 60 days of when they receive informed parental consent or within the parameters of state guidelines if states establish their own rules.18 Depending on how state laws are worded, education officials may be required to conduct evaluations over summer vacation periods if necessary to complete them within the prescribed time limits. For instance, a federal trial court in Maryland, where state law required evaluations to be completed within 45 calendar days of referrals, reasoned that board officials violated a student’s rights by not conducting an evaluation within the appropriate time frame.19 The record indicated that the child’s mother requested an evaluation in May but officials informed her that they could not complete it during the summer.
The IDEA’s 60-day rule does not apply if “the parent of a child repeatedly fails or refuses to produce the child for the evaluation.”20 Even if parents refuse to respond to requests to provide consent for initial evaluations or to services, educational officials may still continue with evaluations as long as they follow the procedures identified in the IDEA.21 In another clarification, a regulation specifies that generalized screenings employed by educators for instructional purposes, such as at the beginning of terms to evaluate the ability of students in classes, cannot be considered evaluations for special education and related services.22
In conducting evaluations, school officials must “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent,”23 examining students “in all areas of suspected disability”24 that may assist in determining whether they are eligible for IDEA services. Put another way, since the evaluation process needs to be individualized and multidisciplinary, no single procedure can be the sole criterion for determining eligibility or placement.25 More specifically, all testing and evaluation materials and procedures must be
selected and administered so as not to be discriminatory on a racial or cultural basis; are provided and administered in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer; are used for purposes for which the assessments or measures are valid and reliable; are administered by trained and knowledgeable personnel; and are administered in accordance with any instructions provided by the producer of such assessments.26
If parents are dissatisfied with the results of school board assessments, they have the right to seek independent evaluations of their children at public expense.27 However, parents are not entitled to publicly paid independent evaluations simply because they wish second opinions or desire more information. In order to obtain independent evaluations at public expense, parents must disagree with and challenge the appropriateness of board assessments.28 Boards can challenge independent evaluations via due process hearings in attempting to demonstrate that their own evaluations met the IDEA’s requirements. If educational officials succeed in proving that their evaluations were proper, boards do not have to pay for independent evaluations.29 Courts order boards to reimburse parents for independent evaluations when the parents can prove that disputed evaluations were inappropriate and their independent evaluations were appropriate.30
If due process hearing officers agree that school board evaluations are appropriate, parents retain the right to independent evaluations but not at public expense.31 School officials may ask parents why they are seeking independent evaluations but cannot require them to provide explanations; in addition, the IDEA forbids educators from unreasonably delaying either providing evaluations at public expense or filing requests for due process hearings to defend their public evaluations.32 Although parents do not need to notify educational officials that they are seeking independent evaluations, their failure to provide prior notice could jeopardize claims for reimbursement if doing so prevents board representatives from requesting due process hearings in seeking to prove that their evaluations were proper.33 If parents request independent evaluations, the onus is on educational officials to ask for hearings to demonstrate that board evaluations were appropriate or that the parental independent evaluations were inappropriate in order to avoid paying for independent evaluations.34 Ultimately, parents are entitled to public payment for only one independent evaluation.35
When parents obtain independent evaluations at their own expense, school officials must take them into consideration as long as they meet district assessment criteria.36 Requiring school officials to consider the results of independent evaluations does not mean that they must adopt the recommendations of independent evaluators.37
In a dispute over an independent evaluation, the First Circuit affirmed that requiring school officials to consider the content of outside assessments did not mean that an IEP team from New Hampshire had to engage in a substantive discussion of its findings.38 In a case from Connecticut, the Second Circuit explained that the plain meaning of the word consider is to reflect on or think about with care, but does not require a board to comply with independent evaluators’ recommendations.39 Similarly, the Eighth Circuit was satisfied that an IEP team from Minnesota met its obligation to consider an independent evaluation because it incorporated many of the recommendations offered by the evaluator into the final IEP.40 These cases reveal that school officials meet the IDEA’s requirement to consider independent evaluations as long as they review the results of such assessments at IEP conferences. Once independent evaluations are completed, either party may present the results of parentally initiated evaluations at due process hearings over the placement of children.41
IEPs can be invalidated if they are not based on proper evaluations of children. Assessments must address all areas of suspected disabilities.
The importance of the evaluation process is reflected in the fact that hearing officers and courts can invalidate IEPs if they are not based on proper evaluations. The federal trial court in New Jersey held that a proposed IEP for a child who was deaf was inappropriate because school personnel failed to follow proper evaluation procedures.42 The court noted that the board’s evaluation team based its placement decision on simple observations. The court pointed out that educators acted improperly since they did not use validated instruments to measure the child’s aptitude, and the procedures that they used tended to be biased against students with hearing impairments. The court also acknowledged that board officials did not include an expert on the education of students with hearing impairments on the evaluation team. Subsequently, in a case from Washington, the Ninth Circuit interpreted the IDEA as requiring evaluations to be completed by multidisciplinary teams including at least one person with knowledge in the suspected area of disability.43 Moreover, the Tenth Circuit affirmed that an evaluation by a multidisciplinary team from Kansas that included assessments in all areas of suspected disability met the IDEA’s requirements.44
In an early case involving the education of students with emotional problems causing acting out and aggressive behavior, a federal trial court in New York declared that their being placed in special education was improperly based on vague criteria that tended to discriminate against minorities.45 The court observed that once the students were placed, they were not re-evaluated as mandated by state and federal law. In seeking to remedy the situation, the parties implemented a court-approved nondiscriminatory assessment procedure.
School personnel are not required to leave their districts in order to evaluate students whose parents unilaterally place their children in outof-state facilities. Where parents in Michigan enrolled their son in an out-of-state residential school without their board’s knowledge or consent, a federal trial court maintained that officials had the right to evaluate the student, whose parents requested that it pay tuition for the out-of-state residential school. Also, the court made it clear that officials were not required to leave the state to evaluate the child.46 More recently, the Seventh Circuit affirmed that school personnel were not required to leave Illinois to evaluate a student.47
As noted, the IDEA requires board officials to evaluate students before they can be initially placed in special education48 and re-evaluate them at least once every three years, unless their parents and educators agree that re-evaluations are unnecessary.49 When dealing with disputes of this nature, the Fifth50 and Seventh51 Circuits agreed that board officials may insist on evaluating students using their own personnel rather than be forced to rely on outside professionals. In the case from the Fifth Circuit, when the parents, acting on recommendations from the child’s physician, refused to allow board officials in Texas to evaluate the student but provided third-party evaluations, officials responded that the evaluations did not meet state criteria. Reversing an earlier judgment in favor of the parents, the court agreed with board officials that the third-party evaluations were inappropriate.
Conversely, as reflected by a case from the nation’s capitol, local board officials may not be able to insist on conducting their own assessments if doing so duplicates tests administered by outside evaluators.52 This means that educators may rely on outside evaluations or tests conducted by personnel from other school systems as long as the information is still relevant.53
Figure 5.1 summarizes the steps in the evaluation and placement process.
Figure 5.1 Steps in the Evaluation and Placement Process
• Teachers, counselors, principals, parents, or other knowledgeable persons such as pediatricians or dentists can refer students who are suspected of having disabilities and being in need of special education.
• School officials notify parents or guardians in writing or other mode of communication that their children have been referred; this notice must also include the reasons for the referral.
• School officials request consent to conduct evaluations in writing.
• After obtaining consent, educators schedule and complete evaluations by multidisciplinary teams. Students must be assessed in all areas of suspected disabilities.
• School officials convene a meeting to discuss the results of the evaluation; make a determination as to whether students need special education and related services; and, if students are found to have a need, develop IEPs.
• IEP teams, including the parents or guardians of students with disabilities, develop IEPs. The parents or guardians may accept or reject proposed IEPs, formulate alternative IEPs, or postpone decisions while seeking independent evaluations of their children.
• If parents or guardians accept IEPs, the plans must be implemented immediately.
• If parents or guardians reject IEPs, the IDEA’s dispute resolution procedures become operative. IEPs are then implemented on resolution of the dispute(s).
• School officials must ensure that all IEPs are reviewed annually and students are re-evaluated at least every three years.
Developing Individualized Education Programs
The IDEA defines IEPs as written statements for each child with disabilities that are developed, reviewed, and revised in accordance with its dictates. IEPs must contain seven major elements:
• Statements about students’ current levels of academic achievement and functional performances54
• Measurable annual goals for children, including academic and functional goals55
• Descriptions of how officials plan to measure students’ progress toward meeting their annual goals and when such periodic reports are to be provided, as well as statements of special education and related services along with supplementary aids and services, based on peer-reviewed research to the extent practicable56
• Statements specifying the special education, related services, and supplementary aids and services that children will receive57
• Explanations of the extent to which children are excluded from participating in regular classes with peers who are not disabled58
• Information detailing individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of students on state and district assessments59
• The projected date of initiation and duration of special education services that children are to receive60
In addition, when the IEPs that are to be in effect for students who reach the age of 16 are developed, plans must include an eighth element:
• a statement of appropriate, measurable postsecondary education goals, to be updated annually, and transition services; this also requires that at least one year before children reach the age of majority, they must be provided with notice of the rights that will transfer to them (such as rights associated with their educational records) on reaching the age of majority.61
IEPs must be developed at meetings including a wide variety of people. IEP teams must include the parents of children with disabilities; at least one of a student’s regular education teachers if the student is in, or will be participating in, regular education; at least one special education teacher or, if appropriate, one special education provider; a representative of the school system who is qualified to provide or supervise the delivery of special education and knowledgeable about general education, the school system’s resources, and evaluation procedures (typically this is a director of special education or an assistant superintendent for students); a professional who can interpret the instructional implications of evaluation results; others, at the discretion of parents or school officials, who are knowledgeable or have special expertise concerning the student(s) at issue; and, when appropriate, the children.62
Litigation has reached mixed results about the composition of IEP teams. Courts generally invalidate IEPs when the exclusion of required members interferes with parental participation or causes inadequacies in IEPs.63 The Ninth Circuit held that the failure of school officials in Washington to include a regular education teacher on a child’s IEP team constituted a significant violation of the IDEA since the student was going to spend time in a regular education setting.64 In this respect, in another case that same court acknowledged that boards have some discretion in selecting the regular education teachers who sit on teams.65 The important criteria are that the teachers selected for IEP teams should have knowledge of the students and program options. In like manner, a federal trial court in New York was of the opinion that a board failed to comply with the IDEA’s procedural requirements when it did not include a representative, either by telephone or in person, from its recommended therapeutic placement for a student at the child’s IEP meeting.66
On the other hand, courts overlook the fact that IEP teams had missing members if their absence did not result in the denial of FAPEs.67 The Fourth Circuit affirmed that it was unnecessary for a school board from North Carolina to have a regular education teacher at an IEP meeting since the student was not being considered for a placement in such a setting.68 In like manner, the federal trial court in Kansas ruled that a board did not violate the IDEA by excluding a regular education teacher from a child’s IEP team because he was not going to spend any time in a general education setting.69 Although the IDEA requires the presence of the special education providers on IEP teams, in a case from New York the Second Circuit maintained that not having a special educator who taught the student at an IEP meeting was a harmless error since a certified special education teacher was present.70
IEP meetings must take place within 30 calendar days of findings that children require special education and related services.71 School boards are required to take steps to ensure the participation of at least one of a student’s parents at IEP meetings.72 If students attend private schools, then representatives of the private schools should be present at IEP conferences.73
Parental input into the IEP process cannot be minimized. One of the IDEA’s unique features is that it specifically provides for parental participation.… Parents cannot simply be given token opportunities for participation. Rather, their input into the IEP process has to be genuine.
Parental input into the IEP process cannot be minimized. One of the IDEA’s unique features is that it specifically provides for parental participation. It should go without saying that the failure of school boards to include parents on IEP teams is a serious procedural violation of the IDEA.74 Parents cannot simply be given token opportunities for participation. Rather, their input into the IEP process must be genuine.
The Ninth Circuit affirmed the invalidation of an IEP that was developed by school officials in Montana without input from a student’s parents and his teacher at his private school.75 The court explained that procedural violations that infringe on the parents’ opportunity to participate in the formulation of IEPs result in the denial of a FAPE. The court later echoed that opinion in a case from Hawaii, holding that a child was denied a FAPE when the IEP team met without his father.76 The parent was unable to attend because of illness but school officials, concerned that the deadline for revising the child’s IEP was approaching, decided to hold the meeting anyway. Similarly, the federal trial court in the District of Columbia reasoned that the failure of board officials to attend an IEP meeting that took place at a private school in which a student was enrolled rendered their proposed placement invalid.77
Informal contacts between parents and school officials do not fully meet the IDEA’s parental participation requirements. An appellate court in Pennsylvania observed that impromptu meetings between a student’s mother and school officials did not satisfy the IDEA’s requirement of affording her the opportunity to participate in the development of her daughter’s IEP.78
According to the Eighth Circuit, though, school officials in Missouri could not be faulted when parents refused to participate in discussions about placement options.79 The Ninth Circuit reached a like outcome in agreeing that the Hawaii Department of Education did not violate the IDEA by conducting an IEP meeting without a mother who failed to respond to multiple attempts to schedule meetings or contact school personnel to reschedule the sessions.80 Also, the Fifth Circuit affirmed that school personnel in Texas did not deny a mother the full opportunity to participate in the development of her child’s IEP when they terminated IEP meetings early due to her behavior and scheduled follow-up meetings.81 In contrast, the Ninth Circuit held that school officials in Hawaii denied a child a FAPE by holding an IEP meeting even though the child’s father stated that he could not attend due to illness and asked that it be rescheduled.82
A federal trial court in Michigan explained that school board officials are required to ensure, if possible, that the teachers of special education students participate in IEP meetings before drastic changes in placements can occur.83 The court indicated that simply inviting teachers to attend IEP meetings did not fulfill that duty since special education teachers had to be active participants. Yet, a federal trial court in Tennessee declared that the failure of a child’s teacher to attend an IEP meeting was harmless since persons knowledgeable about the student were present.84 In a similar case, the federal trial court in Maryland noted that a board’s failure to include representatives from the treatment center a student attended in an IEP conference was not a serious procedural violation because data that were obtained from the treatment center were used in developing the child’s IEP.85 The Sixth Circuit affirmed that inasmuch as a board in Michigan included persons knowledgeable about placement options on an IEP team, it was not required to include an expert in the parents’ preferred methodology.86 Even so, failure to include a knowledgeable school board representative on an IEP team can be fatal to a recommended program if the omission has the effect of denying parents the opportunity to discuss available resources for their children.87
IEPs do not have to be written perfectly in order to survive judicial scrutiny. Courts generally allow some flaws in IEPs as long as they do not compromise the appropriateness of educational programming for students. Courts are ordinarily more forgiving if the missing information was available or provided in another form. For example, in a case from Tennessee, the Sixth Circuit affirmed that an IEP was appropriate that did not specifically contain current levels of performance or the objective criteria for evaluating progress, because the disputed information was known to all concerned.88 The court was unwilling to exalt form over substance, declaring that the emphasis on procedural safeguards referred to the process by which the IEP was developed, not the myriad technical items that should have been included in the written document. Further, the federal trial court in Delaware recognized that even though an IEP had flaws, they did not rise to the level of a violation of the IDEA because they did not hamper the parents’ opportunity to participate in its development.89
On the other hand, courts have nullified IEPs for missing important elements. For example, a federal trial court in California invalidated an IEP that failed to address all areas of a student’s disabilities and that did not contain a statement of the specific services to be provided.90 The court thought that an IEP with those defects would have compromised the integrity of the student’s educational program. Also, a federal trial court in New York commented that an IEP was insufficient, containing vague information that did not establish a student’s needs with precision.91 The same court later wrote that an IEP was procedurally defective because it contained goals that were not tailored to a student’s unique needs and abilities, generic objectives, and incomplete evaluation measures.92
IEPs containing all of the required elements, including specific information, pass judicial muster. By way of illustration, in two cases from Kansas, with the Tenth Circuit affirming both judgments, the federal trial court observed that IEPs including specific statements of students’ present levels of functioning, annual goals adequately describing their anticipated educational performances, measurable short-term objectives, and criteria for measuring students’ progress met all federal and state requirements.93 Along the same lines, a federal trial court in Michigan accepted the adequacy of an IEP containing a series of tables covering each academic subject and including short-term objectives, performance criteria, evaluation procedures, and schedules for evaluation.94 In spite of parental contentions to the contrary, other courts agreed that IEPs containing all of the required elements were not defective.95
An overriding theme of the IDEA is that IEPs and educational programs for students with disabilities must be individualized. Put another way, IEPs should be based on the unique characteristics of individual children, taking into consideration their strengths and weaknesses. Courts agree that IEPs that are not individualized are inappropriate. For instance, a federal court in Alabama invalidated an IEP as inappropriate because it lacked academic objectives and methods of evaluation addressing the student’s unique needs and abilities.96 Another federal trial court, in Maryland, criticized an IEP for failing to specifically address a child’s needs because it was assembled using portions of IEPs that were developed for other students.97
Another major doctrine of the IDEA is that the placements must be rooted in the IEPs of students, not the other way around. In other words, educators must develop placements to fit the unique, individual needs of students rather than fit the children into available programs. Courts have invalidated the practice of writing IEPs based on what placements offer, as opposed to the specific needs of children. The Fourth Circuit affirmed that school officials in Virginia violated the IDEA when they chose to place a student in a county facility and then wrote an IEP to carry out this decision.98 Moreover, the federal trial court in Connecticut concluded that board officials violated the IDEA when they proposed a placement without first evaluating a child or writing an IEP.99 Also, a federal trial court in New York posited that school officials who placed a student in a program before they had an IEP in effect violated the IDEA.100 Conversely, the First Circuit affirmed that an IEP team from New Hampshire who considered various options along a continuum from least to most restrictive did not finalize a student’s placement prior to formulating his IEP.101
Disputes over whether school officials made placement decisions in advance notwithstanding, nothing in the IDEA prevents educators from presenting draft IEPs at conferences for the purpose of discussion. The federal trial court in Rhode Island declared that presenting parents with a completed IEP at a conference was not an indication that they were denied a meaningful opportunity to participate in its development.102 Subsequently, in a case from New Hampshire, the First Circuit affirmed that it is acceptable for one person to draft an IEP as long as the parents and other members of an IEP team have the opportunity to provide input into its contents.103 Similarly, the Eighth Circuit agreed that nothing in the IDEA or its regulations prohibited school personnel in Missouri from coming to an IEP meeting with tentative recommendations.104 In another dispute, the Third Circuit affirmed that a draft IEP developed by a team from New Jersey did not violate the IDEA’s parental participation requirement in light of evidence that the parents made suggestions for changes, some of which were incorporated into its final version.105 The Ninth Circuit added that school officials from Washington did not violate the IDEA by conducting a preparatory meeting prior to an IEP conference since they did not make decisions at the preparatory meeting and the parents actively participated in the actual IEP meeting.106
Courts frown on attempts by school officials to develop IEPs beforehand and force them on parents without meaningful discussion of the educational needs of their children, but they do allow educators to prepare for IEP meetings. For instance, the Sixth Circuit ruled that educators from Tennessee could not predetermine a child’s placement in an IEP since doing so prevented his parents from having a meaningful opportunity to participate in its development.107 More recently, the federal trial court in New Jersey decreed that an IEP team predetermined a child’s IEP, citing evidence that school personnel had come to definitive conclusions without parental input, failed to discuss parents’ suggestions, and even failed to listen to parents’ concerns.108
On the other hand, in an appeal from New York, the Second Circuit explained that the IDEA does not prohibit school officials from considering possible placement options prior to an IEP meeting, but rather, allows them to engage in preparatory activities to develop a proposal or respond to parental requests.109 In the same way, a federal trial court in Virginia was of the opinion that while school officials must come to IEP conferences with open minds, this did not mean that they had to arrive with blank minds.110 The court emphasized that even though board officials cannot finalize placement decisions before IEP conferences, they should give thought to them prior to the meetings. However, the court made it clear that board representatives must remain receptive to all parental concerns.
School board officials sometimes develop interim IEPs for students in order to cover short periods of time while preparing permanent IEPs. This may occur so that children can be placed in special education programs while undergoing evaluations or to cover the short periods of time during which teams prepare permanent IEPs. A federal trial court in Alabama asserted that the IDEA does not contain provisions for interim IEPs.111 The court pointed out that boards are required to convene meetings to develop IEPs prior to the beginning of each school year, even if this means gathering over the summer. The federal trial court in Maryland insisted that board personnel must meet during summer months, if necessary, to develop IEPs within 30 days of determining that students need special education and related services.112 Conversely, the federal trial court in Delaware refused to impose liability on a board for not having an IEP in place at the beginning of a school year since the child’s parents were responsible for the delay.113
An exception may exist to the general rule when students move from one district to another and the board in the latter is unable to implement their existing IEPs immediately. Under these circumstances, a court may allow a temporary placement until the new board can develop a permanent IEP.114 The IDEA distinguishes between students who transfer within states and those who move in from other jurisdictions. When students transfer within states, receiving boards must provide services that are comparable to those in students’ previous IEPs until such time as school officials either adopt the previous IEPs or develop new IEPs.115 On the other hand, when students transfer to districts in other states, the new boards must provide services comparable to those in the previous IEPs until such time as officials decide whether it is necessary to conduct evaluations and develop new IEPs.116 Although the difference is slight, this provision recognizes that students who were eligible for services in one state may not necessarily be eligible in another due to differing state standards.
IEPs for students with disabilities must be reviewed and revised, if necessary, at least annually.117 IEP teams should provide reviews and revisions more frequently if they are needed. Procedures for reviewing and amending IEPs generally are similar to those for developing initial IEPs. All of the IDEA’s regulations’ procedural and notification rights apply to meetings convened to review and possibly revise IEPs.118 Naturally, parents must be given opportunities to provide input into the revision process, just as with initial IEPs.
IEPs should be reviewed if parents express any dissatisfaction with the educational programs of their children. To this end, the federal trial court in the District of Columbia was of the view that a mother’s request for a due process hearing put her school board on notice that she was dissatisfied with her daughter’s placement status and that officials were obligated to review and possibly revise the child’s IEP.119 In a case reaching the opposite result, the First Circuit affirmed that school personnel in Massachusetts had no obligation to review and revise an IEP for a student whose parents unilaterally placed him in a private school.120
There is a limit to the number of times school boards must review the IEPs of children. The federal trial court in Connecticut decreed that school officials were justified in refusing to conduct another IEP team meeting after they convened a large number of meetings in the previous six months at which all of the issues raised by the child’s guardian had already been discussed and investigated.121
New IEPs should generally be developed if the placements of children are to change. Yet, this step is not always necessary. The Ninth Circuit acknowledged that school board officials from Washington were not required to write a new IEP for a student who was being transferred temporarily to an off-campus special education program for disciplinary reasons.122 The court observed that the student’s IEP could have been fully implemented in the new setting.
Change in Placement
Once students with disabilities are evaluated, school officials may not change their placements unless their parents have been notified in writing of planned actions and have been afforded opportunities to contest the proposed modifications.123 In addition, the IDEA dictates that while administrative hearings or judicial proceedings are pending, a “child shall remain in the then current placement” unless the parents and school board agree otherwise.124 This section of the IDEA, known as the “status quo” or “stay put” provision, has been subject to a great deal of litigation.
Then-Current Placement
Generally, the settings students are actually in when actions arise are considered to be their “then-current” or pendant placements. In a dispute that arose in Ohio, the Sixth Circuit defined a then-current placement as the operative placement functioning when a dispute arises.125 The court noted that a proposed placement that never was implemented simply did not qualify as the status quo setting.
On occasion, school officials may make placements that are intended to be temporary. In such situations, officials are obliged to make their intentions clear or the courts are apt to consider those placements as the then-current placements.126 Three cases involving the District of Columbia public schools illustrate this point. In one dispute, educators at a private facility developed an IEP for a student calling for a transfer to a residential school. The board agreed to the new placement, but a year later officials notified the student’s parents that they saw no need for continued placement there and would no longer assume financial responsibility for the placement. The federal trial court decided that the residential school was the student’s then-current placement because the board assumed responsibility for it and had given no indication at the time that it intended to do so for one year only.127 In another case, the same court indicated that any limitation on a placement must be spelled out clearly and described in a settlement agreement.128 Based on the mutual consent of school officials and the child’s parents, the student was placed in a private school pending resolution of a placement dispute. The board argued that the private school was an interim placement only, but the court reasoned that it was the then-current placement since its interim status had not been articulated clearly. Similarly, the District of Columbia Circuit Court held that a private school placement ceased to be the then-current placement at the end of an academic year because a hearing officer’s order stated clearly that it was to be for one year only.129
The Second Circuit pointed out that a private school placement that a hearing officer ordered a board in New York to fund for one year only was not the then-current placement.130 Conversely, a federal trial court in New York, after uncovering no evidence that school officials limited funding for a private school placement to one school year, stipulated that the private school was the child’s pendant, or current, placement.131 In a case from Maine, the First Circuit, acknowledging that a private school placement was never intended to be more than temporary and that a settlement agreement specified that it would terminate at the end of the academic year, decreed that a public school placement was the student’s then-current placement.132
Parentally made unilateral placements can be then-current placements if school boards fail to propose appropriate programs in a timely fashion. In such a case, the federal trial court for the District of Columbia was of the opinion that where educational officials failed to propose a program for a student by the deadline established by a hearing officer, his parents were justified in placing him in a private school.133 The court was thus satisfied that this was the child’s current educational placement.
If parents unilaterally remove their children from programs, those settings do not cease to be the then-current placements. For example, the Eighth Circuit maintained that the public school placement of a student from Minnesota whose parents removed him from school was the status quo.134 The parents enrolled their child in another school system, but one month later they reenrolled him in his former district. The court rejected the mother’s attempt to reenroll her son as a regular, rather than special, education student. The court observed that a one-month term as a regular education student in another district did not negate the child’s special education history. Further, a federal trial court in Illinois wrote that the stay put provision does not apply to students whose parents unilaterally place them in private schools.135 Figure 5.2 details actions that educators must take when changing the placement of students with disabilities.
Placement Pending Appeals
In an early dispute about placements pending appeals arising in Massachusetts, the First Circuit held that Congress did not intend to freeze an arguably inappropriate placement for the length of time it takes for review proceedings to culminate.136 Consequently, parents can be reimbursed for the cost of tuition in private schools as long as courts agree that these are the then-current placements.137
A question arises as to when parents or school officials are entitled to make changes in the placements of students with disabilities pursuant to the orders of hearing officers or judges. Some courts agree that changes in placement can occur once administrative orders are issued, even if they are being appealed. In such a case, the Ninth Circuit ruled that once a state educational agency agreed that a parentally chosen placement was correct, it became the then-current placement under the IDEA, and a school board in California was required to keep it in effect pending judicial review.138 The federal trial court in Massachusetts thought that if a state agency, such as the Bureau of Special Education Appeals, and the student’s parent agreed on a placement, the school committee’s approval was not required to make a change in placement.139 In another case, a federal trial court in New York remarked that a board was not relieved of its obligation to fund an alternative school placement until final administrative review procedures were completed.140 At the same time, the court was of the view that the board was financially responsible only until the date the final judgment was handed down, not until the end of the school year. It is important to keep in mind that board officials are required to review and, if necessary, revise IEPs even while appealing stay put orders.141
Figure 5.2 Changing the Placement of a Student With Disabilities
• Prior to changing the placement of students with disabilities, school officials must provide their parents or guardians with written notice of the proposed changes. Notice should include
Explanations of the IDEA’s due process safeguards.
Descriptions of the proposed change or other options considered, with an explanation of why other options were rejected.
Explanations of all assessments used in making a determination.
Descriptions of other relevant factors used in making determinations.
• Notice must be written in a language understood by the general public and in the parents’ or guardians’ native language or other mode of communication. If necessary, notice can be provided orally. Notice should be provided within a reasonable time prior to the proposed change in placement.
• If parents or guardians object to proposed changes in placements, they are entitled to due process hearings.
• Until disputes are finally resolved, students are to remain in their then-current educational placements, unless their parents or guardians and school officials agree otherwise or judges or hearing officers order changes in placement. (Note: Exceptions exist for dangerous students. See Chapter 6 for explanations.)
The IDEA calls for agreements by either states or local school boards and parents to effectuate changes in placements during the pendency of review proceedings. The Supreme Court, in dicta in Burlington School Committee v. Department of Education of the Commonwealth of Massachusetts (Burlington),142 posited that a state-level hearing order in favor of the parents’ chosen placement seems to constitute agreement by the state to a change in placement. Citing Burlington, in a case from New York, the Second Circuit ruled that a reimbursement order predicated on a finding that a proposed IEP is inappropriate constitutes a change in a student’s current educational placement.143 Other courts have followed this analysis in concurring that orders of state level hearing officers constitute changes in placements.144
As is explained more fully in Chapter 7, states have the option of establishing either one- or two-tiered administrative hearing systems.145 In one-tiered systems, the sole hearing is conducted by the state. In two-tiered systems, initial hearings take place locally, and appeals are conducted by the state. There is some judicial agreement that in two-tiered systems, orders at the appellate level favorable to parents constitute agreements by the states.146 In such a case, a federal trial court in New York suggested that an adjudication by either a state hearing officer in a one-tiered system or a state reviewing officer in a two-tiered system constituted an agreement by the state under the IDEA’s stay put provision.147 Previously, the Fifth Circuit affirmed that insofar as a review panel’s reversal of an order from a hearing officer that had been in favor of a Louisiana school board’s proposed placement constituted an agreement between the state and parents, a residential facility was the pendant placement during all proceedings.148
On the other hand, according to the District of Columbia Circuit and the Third Circuit the IDEA’s status quo provision requires that student placements remain the same until all administrative hearings and trial court actions are completed. The District of Columbia court noted that the IDEA did not entitle a student to remain in a private school at public expense pending review by an appeals court; the hearing officer and federal trial court agreed that the IEPs offered by the school board were appropriate.149 The Third Circuit agreed that a school board was required to maintain a student’s private school placement until the completion of trial proceedings.150 In a separate action in the same dispute that was not appealed, a federal trial court in Pennsylvania denied an injunction to require the board to continue funding the private school placement pending an appeal to the Third Circuit.151 The court was of the opinion that providing status quo protection during the pendency of its own review ensured that school officials could not unilaterally move the child without federal review, but imposing status quo during federal appeals could yield absurd results by forcing boards to pay tuition even while multiple levels of review agreed that offered IEPs were appropriate. Conversely, the Ninth Circuit decreed that a board in California had to continue funding an in-home intervention program while an appeal of a trial court order was pending.152
Courts also consider special circumstances in rendering equitable orders. For example, the federal trial court for the District of Columbia declared that the school board was required to fund a private school placement during the pendency of a parental appeal of a hearing officer’s order.153 The court added that insofar as it would have been inappropriate, insensitive, and indefensible for it to have called for a change in placement one semester before the student completed his schooling, the board had to pay for the cost of his remaining in the private school until graduation, even though a hearing officer contended that the board’s proposed change in placement was appropriate. In an analogous situation, a federal trial court in New York pointed out that the status quo provision prohibited a school board from permitting a student to graduate from high school during the pendency of administrative appeals because doing so would have terminated his rights to additional educational services.154
Pursuant to the IDEA’s status quo provision, during the pendency of appeals over students who are seeking initial admissions to public schools and until all appeals are completed, children are to be placed in public school programs.155 However, since the IDEA does not clarify whether these placements should be in general education classrooms or special education programs, litigation has ensued. In a case where parents and school officials agreed that a child’s pendant placement was no longer appropriate but the parties could not agree on a new program, a federal trial court in Wisconsin ordered its immediate termination in favor of the board’s proposal.156 Even though the parent challenged the proposed IEP, the court ruled that it would provide a FAPE and ordered the immediate termination of the placement that all agreed was not proper.
Students whose school boards have yet to place them are not protected by the status quo provision. In a case on point, a federal trial court in Illinois explained that the IDEA’s status quo provision did not apply to a student who was unilaterally placed by his parents before their school board had the opportunity to make a recommendation regarding his education.157 The court wrote that while the status quo provision was designed to prevent interruptions in programming for students, it was not intended to protect children who were awaiting placements. By the same token, the Ninth Circuit pointed out that a private placement unilaterally chosen by parents in California before a school board developed an IEP failed to qualify as a current educational placement because there had not been a ruling regarding the appropriateness of that placement.158
Courts reach mixed results in situations where children are making transitions to school-aged programs from early intervention programs offered to infants and toddlers159 under individual family service plans (IFSPs). The Eleventh Circuit affirmed that students from Florida who were transitioning from early intervention to preschool programs were essentially applying for initial admission to a public school.160 As such, the court determined that the students were not entitled to continue receiving the services in their IFSPs pursuant to the status quo provision. A federal trial court in New York ruled that the IDEA did not require that a child whose parents were applying for initial admission to the public schools receive the same level of services provided by her early intervention program under her IFSP.161 Conversely, the Third Circuit directed a board in Pennsylvania to continue the services in a child’s IFSP until a dispute over her preschool IEP was settled.162 Noting that Congress envisioned a smooth transition from early intervention programs to school-aged programs, the court wrote that the IDEA anticipates and condones the interchangeability of an IFSP and an IEP during the transition to preschool.
Change in Program Location
Courts agree that the general rule of the IDEA is that the term change in placement refers to changes that affect the form of educational instruction provided, not the location where it takes place. For various reasons, such as school closings, boards sometimes must move special education programs from one building to another. Courts share the perspective that transfers of entire classes or programs do not constitute changes in placement triggering the IDEA’s due process procedures.163
When the physical locations of programs are moved from one place to another, the educational programming for children must remain substantially the same. For instance, the Fourth Circuit interpreted the IDEA’s use of the term educational placement as referring to the services that children receive, not necessarily the location where they are provided.164 Thus the court affirmed that to the extent that a child’s new setting, in the least restrictive environment, duplicated the educational program in his original placement, albeit in a different location, school officials in Virginia satisfied the IDEA’s stay put provision.
As illustrated by a case from New York, the elimination of a major component of a program can be sufficient cause to trigger the IDEA’s due process mechanism. A federal trial court decreed that the elimination of the summer component of what had been a year-round residential program was of such critical magnitude that it constituted a change in a child’s placement.165 In another case, a federal trial court in Pennsylvania nullified the proposed transfer of two students from one program to another that involved a change in the method of instruction.166 The court indicated that insofar as the students were making progress in their program, any changes had to be considered with caution.
When a transfer involves moving a single student, it may not be considered a change in placement if the new program is almost identical to the former one. The District of Columbia Circuit rejected the claim of a surrogate parent that moving a student with profound disabilities from a private to a government operated hospital was a change in placement.167 The court specified that the claim failed because the surrogate parent was unable to demonstrate that the shift constituted a fundamental change in or the elimination of a basic element in the child’s IEP. Subsequently, in a case from Louisiana, the Fifth Circuit adopted a similar rationale in expressing the view that a transfer from one school building to another was not a change in placement because the student’s IEP was fully implemented following the move.168 One year later, the Fifth Circuit approved a Texas magistrate judge’s transfer of a student from one location to another on the basis that this did not alter her IEP.169
The failure of school officials to implement IEPs completely following changes of location can constitute changes in placements. In such a situation, the District of Columbia Circuit maintained that school board officials violated the IDEA’s change in placement provisions when they failed to notify a student’s surrogate parent that his educational program had been curtailed on account of his medical condition.170 The court observed that even though the student’s medical condition prevented him from being able to be transported to his special education program, school officials were still obligated to make attempts to provide him with services, albeit alternate services.
Changes in locations that render overall programs more restrictive for students generally constitute changes in placements. Even so, this issue is far from settled, particularly when transfers are made for disciplinary purposes. In one such dispute, a federal trial court in Louisiana treated a student’s being moved from a self-contained special education class to an off-campus alternative program as a change in placement because the new setting would have deprived him of contact with peers who did not have disabilities.171 On the other hand, a federal trial court in North Carolina refused to interpret a student’s reassignment to a management school as a change in placement because the new setting provided the same curriculum and services that he received in his former program.172
In a series of judgments, the federal trial court in the District of Columbia decreed that the school board’s failure to pay private school tuition on a timely basis violated the IDEA because it created the very real threat that the students would be removed from the schools.173 According to the court, such an action would have violated the IDEA’s prohibition against unilateral changes in placements.
Graduation Is a Change in Placement
As noted, major modifications to student IEPs amount to changes in placements. Moreover, courts agree that graduation is a change in placement because it terminates all educational services for students. In an illustrative case, the Supreme Judicial Court of Massachusetts ruled that the failure to provide parents with formal written notice that their son was to graduate violated the IDEA and a commonwealth statute.174 Using a similar rationale, a federal trial court in New York treated graduation as analogous to an expulsion since it resulted in a student’s total exclusion from his educational placement.175
Adjustments to IEPs
Generally, modifications to IEPs constitute changes in placement, but minor adjustments are allowable. As could be expected, this distinction is often subject to differing perspectives. The Third Circuit reasoned that the important element in evaluating whether a change in placement has occurred is whether a change is likely to affect a student’s learning in some significant way.176 The court viewed a minor change in the transportation arrangements for a student in Pennsylvania as not being a change in placement but warned that under some circumstances transportation could have a major impact on a child’s learning. Two years later, the federal trial court in Massachusetts echoed the Third Circuit’s analysis that a child’s learning experience must be affected in some significant way when it decided that an adjustment to an IEP that was more superficial than substantive was not a change in placement.177 The federal trial court in Maryland also treated minor modifications in a student’s schedule that did not alter the goals and objectives in his IEP or the amount of special education time as not constituting a change in placement.178
Services Not in IEPs
School boards sometimes provide students with disabilities with auxiliary services that are not called for in their IEPs. If services are not being provided under the terms of IEPs, they can be changed without providing parents with the IDEA’s due process safeguards. In such a case, the Ninth Circuit held that insofar as a tutoring program that was not provided as part of an IEP for a student in Washington was not a special education service, a change in tutors was not a change in placement.179 Ironically, the record documented that officials provided tutoring after the student’s parents rejected the board’s offer to afford the child special education services. Similarly, the Sixth Circuit affirmed that board officials in Ohio did not violate the IDEA’s stay put provision when they refused to leave a student in an extended school year program that was not included in his IEP.180
The IDEA’s change in placement procedures are inapplicable to placements not made pursuant to its provisions. In other words, if state agencies make residential placements for social purposes, the IDEA’s change in placement requirements cannot be invoked if officials attempt to transfer students to other facilities or otherwise remove them from residential facilities.181 The IDEA’s change in placement procedures apply only to services specified in IEPs. Accordingly, a service provider cannot invoke the IDEA’s change in placement provision in license revocation proceedings.182
Programs That Are No Longer Appropriate
A special problem regarding the IDEA’s status quo provision exists when it is no longer appropriate for students to remain in programs they have attended. This may occur for a variety of reasons: Schools may close, private schools can lose their state approval, programs can be found to be lacking in quality, students may age out of their current programs, or programs may no longer be able to serve particular children. Typically, in these situations courts approve placements in similar facilities. Once again, and as reflected in the following cases, the key element is that new programs must be able to implement student IEPs fully to pass muster under the status quo provision.
In New York, a federal trial court refused to treat students’ transfers from a private school that was found to be lacking to more suitable facilities as a change in placement.183 The court recognized that the board terminated its contract with the private school after an audit disclosed problems with its operations, including mismanagement of funds and serious educational deficiencies. A year later, in a second case from New York, the Second Circuit affirmed, but slightly modified, an order in favor of a student and his parents, declaring that their board had to leave him in a facility that had lost its state approval until such time as officials were able to offer an appropriate alternative.184
The Sixth Circuit affirmed that the transfer of students from a closed treatment facility in Kentucky to dissimilar alternate facilities was a change in placement.185 At the same time, the court acknowledged that insofar as the closing occurred for financial reasons, the IDEA’s procedural safeguards did not apply. The court added that the students could contest their new placements through the IDEA’s administrative hearing process. In another case where a private school closed, the federal trial court for the District of Columbia upheld a hearing officer’s order for the school board to fund a placement at another private school.186 When the private school closed, the board offered the student a placement in a public school but failed to execute a complete IEP. The facts revealed that when school officials failed to present the child’s parents with an IEP by the start of the next school year, they unilaterally enrolled their son in another private school. When a special education charter school in Texas closed and its students were enrolled in new schools, a federal trial court denied relief under the IDEA’s status quo provision because their parents failed to prove that the IEPs of the children would have been modified in their new placements.187
In two separate cases the District of Columbia Circuit posited that when officials in private schools determine that they can no longer serve students, school boards are obligated to locate and fund similar programs.188 In the latter case, even though the private school placement was no longer available, the court allowed the board to make an interim placement in a public school program that was not inherently dissimilar until officials offered a final placement. Consistent with these cases, the federal trial court in the District of Columbia ordered the board to find similar placement alternatives to fulfill the requirements of student IEPs when their pendant placements were no longer available.189
A school board in New Hampshire proposed a placement in a public high school for a student who was too old to continue at the private residential school he attended at public expense. The federal trial court was convinced that insofar as such a transfer would have fundamentally altered the student’s educational program, it was a change in placement.190 The court concluded that the private school selected by the parents would have provided an experience substantially similar to the one in their son’s former placement.
As the Seventh Circuit reasoned, educational methodologies that are appropriate in one environment may not always be effective in another. Therefore, the court maintained that flexibility is required when determining the status quo for students moving from one level to another, such as from a middle to a high school.191 In remanding the case for further proceedings, the panel instructed a trial court in Illinois to consider whether specified methodologies were part of a student’s IEP or simply chosen by the child’s teachers.
Altering the Length of a School Year
In today’s economic climate it is not unusual for school boards to institute cost-saving measures such as employee furloughs as a means of reducing budgets. Such a practice may not be problematic under the IDEA as long as it impacts all students equally. In the midst of a fiscal crisis, the State of Hawaii chose to close its schools on 17 Fridays during a school year. As part of that measure, the state negotiated an agreement with its teachers to implement the furloughs. Clearly, special education students could not have attended school on those Fridays. Yet, the Ninth Circuit agreed that closing school on the designated Fridays, thereby shortening the school year, did not constitute a change in placement under the IDEA.192 The court insisted that Congress did not intend for the IDEA to apply to systemwide administrative decisions that affected all public schools and all students. Thus, the court believed that Hawaii’s across-the-board reduction in school days did not conflict with Congressional intent of protecting students with disabilities from being singled out. Further, the court commented that to apply the IDEA’s status quo provision in such a situation would have essentially given parents veto power over the state’s authority regarding the management of its schools.193
Annual Reviews and Reevaluations
As reviewed earlier, the IDEA requires school officials to review the IEPs of students with disabilities at least annually194 and to conduct reevaluations at least once every three years, unless they and parents agree that re-evaluations are unnecessary.195 Nonetheless, parents retain the right to request reevaluations more frequently than every three years.196 Accordingly, hearing officers and courts cannot order school boards to maintain given placements for longer than one year. Of course, each year’s IEP is subject to the IDEA’s due process requirements. The federal trial court for the District of Columbia denied a parental request to prohibit the board from changing a private school placement for two years.197 The court stated that board officials had to be free during that time frame to consider whether the private school was still appropriate.
At least one federal court, in Michigan,198 ordered a school board to update evaluations before making significant changes in placements. Board officials proposed a change in placement for students with hearing impairments from a state school for the deaf to a program within the public schools. Since this change would have fundamentally altered the educational programs of the students, the court decided that the reevaluations were warranted. Yet, in another case the Tenth Circuit made it clear that even though graduation is generally considered to be a change in placement, a reevaluation was not required before a student’s services were discontinued due to his graduation.199 Where a student in Oklahoma asked for a due process hearing but the process was not completed until after he graduated, he alleged that he was denied services. The court affirmed that the student was not entitled to a hearing, because after graduation he was no longer protected by the IDEA.
Frequently Asked Questions
Q: What are the required components of IEPs?
A: According to the IDEA, IEPs must contain
• Statements of the current level of academic achievement and functional performance of students
• Measurable annual goals for students, including academic and functional goals
• Descriptions of how officials plan to measure students’ progress toward meeting their annual goals, as well as of when periodic reports on this progress are to be provided
• Statements of the special education and related services, as well as supplementary aids and services, that students are to receive, based on peer-reviewed research to the extent practicable
• Explanations of the extent, if any, to which students are not going to participate in regular classes with peers who are not disabled
• Statements of the individual appropriate accommodations necessary to measure the academic achievement and functional performance of students on state and district assessments
• Projected dates of initiation and duration of special education services that students are to receive
In addition, starting no later than when the first IEP is written that is to be in effect for students who reach the age of 16,
• Statements of appropriate measurable postsecondary education goals, to be updated annually, and transition services
At least one year before students reach the age of majority,
• Statements that they have been informed of their rights, if any, that will transfer at the age of majority (20 U.S.C. § 1414(d))
Q: If students are promoted from one level to another, such as elementary to middle school, does this constitute a change in placement?
A: No. These are not changes as long as new programs provide substantially the same educational benefits as the previous ones did. Although the IDEA permits minor adjustments reflecting changes to the new levels, the amounts and types of services must remain the same.
Q: Are school boards required to implement the findings and recommendations of independent evaluators?
A: No. The IDEA directs school boards to consider the findings and recommendations of independent evaluators but does not require them to adopt the recommendations. IEP teams can satisfy the requirement to consider these results by reading and discussing the reports of independent evaluators at IEP meetings with parents.
Q: Must school officials review IEPs each and every time a parent requests a review?
A: No. While school officials must address parental concerns and dissatisfaction with IEPs, once they have dealt with issues, they are not required to review them repeatedly every time parents voice concerns.
Q: Is it always necessary for all required members of IEP teams to be at each and every IEP team meeting?
A: No. The IDEA does allow for some team members to not be physically present at IEP conferences if parents agree that their presence is not essential and they provide written reports. Also, courts have overlooked improperly constituted IEP teams when school board officials have shown that the absence of some members did not have an effect on the final outcome and did not cause a denial of a FAPE or infringe on the parents’ rights to fully participate in the process. This noted, board officials should always endeavor to make sure that all required members of IEP teams are present at all meetings. If a specific member is unable to attend for good cause (such as illness) board officials should provide appropriate substitutes or reschedule meetings.
Recommendations
The IDEA and its regulations establish specific criteria for school board officials to follow in locating, identifying, evaluating, and serving students with disabilities. As discussed more fully in the next chapter, the IDEA grants students and their parents specific procedural rights in this process to ensure that they are equal partners. The following recommendations were gleaned from the numerous cases interpreting the IDEA and its regulations regarding the procedures IEP teams must follow in evaluating students and developing IEPs to provide them with FAPEs. Since individual jurisdictions may afford students and their parents additional rights, they should also consult state laws and regulations.
School officials should
• Make sure to complete fair assessments of students with disabilities.
• Guarantee parental input into evaluation and placement processes.
• Ensure that testing and evaluation materials as well as procedures are selected and administered in a manner that is not racially or culturally biased.
• Include assessments in all areas of suspected disability in the multidisciplinary evaluation.
• Consult state laws and regulations for timelines for completing evaluations and making placements.
• Develop and implement policies and procedures to avoid the overidentification or disproportionate representation based on race and ethnicity of students with disabilities.
• Carefully review and discuss the results of independent evaluations, keeping in mind that educators do not have to adopt all findings of independent evaluators.
• Avoid the use of boilerplate text in IEPs; IEPs that are not individually tailored to meet the unique needs of students run the risk of being invalidated.
• Ensure that at least one person who is knowledgeable of placement options participates as a member of IEP teams.
• Be diligent in ensuring that IEPs contain all required elements, particularly students’ current levels of functioning, annual goals and measurable short-term objectives, clearly stated performance criteria, evaluation procedures, and schedules for evaluation.
• Come to IEP meetings with proposals and even draft IEPs, but ensure that parents have input into the IEP process.
• Ensure that student placements are based on IEPs and that IEPs are not written to fit placements.
• State in unequivocal terms in IEPs that placements are intended to be only temporary if this is the case.
• Ensure that board representatives attend IEP meetings convened in private schools for students who attend private schools at public expense.
• Check with state officials to determine whether their states have been approved for pilot three-year IEPs.
• Consider taking steps to reduce paperwork, regardless of whether state officials choose to participate in the pilot national program.
• Implement the IDEA’s procedural safeguards before making substantial changes to the IEPs or placements of students.
• Schedule review meetings if parents express dissatisfaction with IEPs or the progress of their children.
• Notify parents any time school board officials propose to act on placements of or refusals to initiate actions for students with disabilities.
• Make changes in placement only when parents agree to them or they are ordered by hearing officers or courts, keeping in mind that unilateral changes in placement cannot be made while appeals are pending.
• Ensure that IEPs can be fully implemented in new locations if changes in location for the delivery of services are required.
• Locate new programs that are substantially similar to current programs and that can implement student IEPs if the current program of students closes or becomes unavailable.
• When students move from one level to the next in a school system, make sure that their programs at the new level are as close as possible to their previous programs.
Recommendations
The IDEA and its regulations establish specific criteria for school board officials to follow in locating, identifying, evaluating, and serving students with disabilities. As discussed more fully in the next chapter, the IDEA grants students and their parents specific procedural rights in this process to ensure that they are equal partners. The following recommendations were gleaned from the numerous cases interpreting the IDEA and its regulations regarding the procedures IEP teams must follow in evaluating students and developing IEPs to provide them with FAPEs. Since individual jurisdictions may afford students and their parents additional rights, they should also consult state laws and regulations.
School officials should
• Make sure to complete fair assessments of students with disabilities.
• Guarantee parental input into evaluation and placement processes.
• Ensure that testing and evaluation materials as well as procedures are selected and administered in a manner that is not racially or culturally biased.
• Include assessments in all areas of suspected disability in the multidisciplinary evaluation.
• Consult state laws and regulations for timelines for completing evaluations and making placements.
• Develop and implement policies and procedures to avoid the overidentification or disproportionate representation based on race and ethnicity of students with disabilities.
• Carefully review and discuss the results of independent evaluations, keeping in mind that educators do not have to adopt all findings of independent evaluators.
• Avoid the use of boilerplate text in IEPs; IEPs that are not individually tailored to meet the unique needs of students run the risk of being invalidated.
• Ensure that at least one person who is knowledgeable of placement options participates as a member of IEP teams.
• Be diligent in ensuring that IEPs contain all required elements, particularly students’ current levels of functioning, annual goals and measurable short-term objectives, clearly stated performance criteria, evaluation procedures, and schedules for evaluation.
• Come to IEP meetings with proposals and even draft IEPs, but ensure that parents have input into the IEP process.
• Ensure that student placements are based on IEPs and that IEPs are not written to fit placements.
• State in unequivocal terms in IEPs that placements are intended to be only temporary if this is the case.
• Ensure that board representatives attend IEP meetings convened in private schools for students who attend private schools at public expense.
• Check with state officials to determine whether their states have been approved for pilot three-year IEPs.
• Consider taking steps to reduce paperwork, regardless of whether state officials choose to participate in the pilot national program.
• Implement the IDEA’s procedural safeguards before making substantial changes to the IEPs or placements of students.
• Schedule review meetings if parents express dissatisfaction with IEPs or the progress of their children.
• Notify parents any time school board officials propose to act on placements of or refusals to initiate actions for students with disabilities.
• Make changes in placement only when parents agree to them or they are ordered by hearing officers or courts, keeping in mind that unilateral changes in placement cannot be made while appeals are pending.
• Ensure that IEPs can be fully implemented in new locations if changes in location for the delivery of services are required.
• Locate new programs that are substantially similar to current programs and that can implement student IEPs if the current program of students closes or becomes unavailable.
• When students move from one level to the next in a school system, make sure that their programs at the new level are as close as possible to their previous programs.
