Transcript Due Process and State Complaints

Due Process and State Complaints
Bonnie Little, Esq.
[email protected]
Erin Auerbach, Esq.
[email protected]
Brustein & Manasevit, PLLC
Spring 2012 Forum
1
Agenda
 Overview of Due Process and State Complaint Process
 Child Find
 Appropriate Education
 Placement/Least Restrictive Environment
 Related Services and Assistive Technology
 Discipline
 Section 504/ADA Issues
 Attorneys Fees
 Remedies
2
Due Process Complaints
 Allow parents/students to enforce the rights guaranteed
under the IDEA.
 Related to refusal or denial to initiate or change the
identification, evaluation, educational placement of the
provision of a free appropriate public education (FAPE).
 The alleged violation must have occurred within 2 years of the
date of the complaint.
 Some states have a 1 year statute of limitations
 Each SEA must establish and maintain due process procedures.
3
Due Process Complaints
Day
Event
Day 1
Parent files complaint
Day 10
School files answer
Day 15
School files allegations of insufficiency of
complaint – if any
Resolution Meeting
Day 20
Hearing Officer will make determination on
allegations of insufficiency – if any
Day 30
End of resolution period – if complaint has
not been resolved hearing goes forward
5 days prior to hearing date
5-day disclosures due
Day 45
Hearing Officer Decision issued
4
State Complaints
 An organization or individual may file a written complaint
alleging that a public agency has violated a requirement of
Part B.
 Allegations can be substantive or procedural.
 Allegations can be general or relate to a specific child.
 One year statute of limitations.
5
State Complaints
 Each SEA must establish procedures for filing and resolving
state complaints.
 60 day time limit
 Independent on-site investigation
 Provide complainant with opportunity to submit additional
information
 Provide public agency with opportunity to respond
 If a parent filed the complaint - Provide opportunity for
mediation
 Independent, written decision
 Remedies and corrective actions for noncompliance found
6
State Complaint vs. Due Process Complaint
 If a state complaint contains allegations that are also part of a due
process complaint, the state must set aside any part of the state
complaint that is being addressed in the due process hearing until
the conclusion of the due process hearing.
 Any part of the state complaint that is not being addressed in the
due process hearing must be resolved within 60 day time limit.
 If an allegation in a state complaint has been resolved in a due
process hearing, the due process hearing decision is binding on
that issue.
 Failure to implement a due process hearing decision must be
resolved by the SEA.
7
Child Find
 Must have in effect policies and procedure to identify, locate
and evaluate all children with disabilities as defined under
IDEA.
 Includes public and private schools
 Includes homeless and migrant children and wards of the state
8
 Corchado v. Bd. of Educ., 86 F. Supp. 2d 168 (W.D.N.Y.
2000)
A student with OHI, SLD and speech impairment was
eligible under IDEA, although achieving at an average level,
based on the adverse educational effects of his seizure
disorder and stuttering.
 New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394
(N.D.N.Y. 2004)
Court ruled that a substance-abusing ninth grader was
eligible as ED and that district was liable for tuition
reimbursement due to delayed evaluation.
9
 N.G. v. District of Columbia, 556 F. Supp. 2d 11 (D.D.C. 2008)
Court upheld Child Find claim of parent for student with ADHD
and depression where the district determined ineligibility based
on recommended section 504 accommodations.
 Eschenasy v. New York City Dep’t of Educ., 604 F. Supp. 2d 639
(S.D.N.Y. 2009)
Court held that teenager who cut classes, took drugs, stole
classmates’ property, and engaged in self-injurious behavior was
eligible as ED.
 Compare to Springer v. Fairfax Cnty. Sch. Dist., 134 F.3d 659 (4th
Cir. 1998), finding student with failing grades, truancy, and drug use
insufficient for ED eligibility.
10
 Hansen v. Republic R-III Sch. Dist., 632 F.3d 1024, (8th Cir.
2011)
Court ruled that student with ADHD and bipolar disorder
was eligible as OHI and ED with adverse effect on
educational performance based in part on failing standardized
test required for promotion.
11
Child Find
 Early Intervening Services
 Students who are NOT currently identified as needing special
education or related services, and
 Students who need additional academic and behavioral support
to succeed in a general education environment
 RTI
LEA cannot delay or deny evaluations on the basis that a child
has not participated in the RTI process. OSEP Memo (Jan.
21, 2011)
12
Appropriate Education
 All children with disabilities are entitled to a free appropriate
public education (FAPE).
 FAPE defined:
 Special education and related services are provided at the public
expense . . . and are provided in conformity with an
individualized education program (IEP) that meets all legal
requirements. 34 C.F.R. § 300.17
13
Appropriate Education
 Components of an IEP
 IEP Team
 Required members
 Parent participation
 Development/revisions of an IEP
 Teacher qualifications
 Placement
 Implementation
14
Components of an IEP
 Walker Cnty. Sch. Dist. v. Bennett, 203 F.3d 1293 (11th Cir.
2000)
The court ruled in parents’ favor where there were
deficiencies in the IEP, including lack of BIP, OT, and ESY.
 N.S. v. Dist. of Columbia, 709 F. Supp. 2d 57 (D.D.C. 2010)
Court found that IEP which lacked specific requirements
(e.g. PELs, specialized instruction and related services)
constituted a denial of FAPE.
15
Components of an IEP
 Escambia Cnty. Bd. of Educ. v. Benton, 406 F. Supp. 2d 1248
(S.D. Ala. 2005)
Court rejected appropriateness of IEP based on prejudicial
procedural violations (e.g. measurable PELs and
goals/objectives) and lack of FBA-BIP.
16
IEP Team
 Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072 (9th
Cir. 2003)
Court held that failure to have the private school special education
teacher on the IEP team and to reschedule the IEP meeting for the
parents’ participation was a prejudicial procedural violation.
 Drobnicki v. Poway United Sch. Dist., 358 F. App’x 788 (9th Cir.
2010)
Court ruled that the district’s failure to make reasonable efforts to
schedule IEP team meeting for parents to attend deprived them of
the opportunity for meaningful participation.
17
Development/revisions of an IEP
 Fisher v. Bd. of Educ., 856 A.2d 552 (Del. 2004)
Court found that FAPE was denied where there was lack of
progress on standardized tests and loss of instruction
(distraction plus pull-out).
 Lamoine Sch. Comm. V. Ms. Z, 353 F. Supp. 2d 306 (D. Me.
2005)
Court held that district’s failure to act decisively to address
student’s attendance problems resulting from his SLD-related
depression constituted denial of FAPE.
18
Development/revisions of an IEP
 Socorro Indep. Sch. Dist. v. Angelic Y., 107 F.Supp. 2d 761
(W.D. Tex. 2000)
Court upheld the appropriateness of school district’s IEP
based on 1) sufficiently individualized assessments; 2)
elaborately designed and effectively implemented to meeting
child’s individual needs; and 3) meaningful progress in the
LRE, with test scores assessed in relation to the student, not
the rest of the class.
19
Teacher qualifications
 Wilson Cnty. Sch. Sys. v. Clifton, 41 S.W.3d 645 (Teen. Ct.
App. 2000)
Court rejected district’s proposed placement for hearingimpaired child based on a number of deficiencies including
teacher’s experience/training.
20
Implementation
 Sumter Cnty. Sch. Dist. v. Heffernan, 642 F.3d 478 (4th Cir.
2011)
Court held that the child’s gains and district’s rectifying
measures were insufficient to avoid denial of FAPE from the
district’s failure to implement a material portion of the IEP
(15 hours/week of therapy).
21
Placement/Least Restrictive Environment
 To the maximum extent possible, children with disabilities should
be educated with nondisabled peers. Special classes, separate
schooling, or other removal of children with disabilities should
occur only if the nature and severity of the disability is such that
education in general classes with the use of supplementary aids
and services cannot be achieved satisfactorily. 34 C.F.R. §
300.114
 Continuum of alternative placements.
 Determining placement.
22
Placement/ Least Restrictive
Environment
 Dist. of Columbia v. Bryant-James, 676 F. Supp 2d 115 (D.D.C.
2010)
Court ruled that district’s IEP and inclusionary placement at a
charter school was inappropriate due to its failure to reflect the
recommendations of the two evaluators whose expertise and
whose evaluations were not questioned.
 Jennifer D. v. New York City Dep’t of Educ., 550 F. Supp. 2d 420
(S.D.N.Y. 2008)
Court rejected the proposed placement of a student with ADHD
in small class in public high school for students with ED as not
FAPE in the LRE as opposed to small class in regular high school
based on improved behavior.
23
Related Services and Assistive
Technology
 Related services include transportation, developmental,
corrective and other supportive services required to help a
disabled child benefit from special education.
34 C.F.R. § 300.34
 Includes: interpreting services, physical and occupational
therapy, speech-language pathology and audiology, counseling,
therapeutic recreation
 Excludes: surgically implanted medical device or replacement
24
Related Services and Assistive
Technology
 Dist. of Columbia v. Ramirez, 377 F. Supp. 2d 63 (D.D.C. 2005)
Court ruled that the student was entitled to door-to-door
transportation, including aide, where it was necessary for him to
receive FAPE.
 M.K. v. Sergi, 554 F. Supp. 2d 201 (D. Conn. 2008)
Court rejected noneducation services, including wraparound
services and medication management, as not related services –
wraparound services were not necessary for educational progress,
and medication management was within medical treatment
exclusion.
25
Discipline Under IDEA
Step-by-Step Guide
1. Is the child identified as a child with a disability or
was school on notice of a disability?

“on notice” if parent expressed concern in writing!
 NO = No IDEA protections. Discipline Enacted.
 Has an evaluation been requested after or during discipline?
 If yes, then expedited evaluations (during evaluations Stay Put does not
apply. Child remains where placed by the LEA.)
 YES = Determine if Change of Placement (# 2)
26
Discipline (cont.)
2. Was the Removal a Change of Placement?
27
NOT a change of placement
Change of placement
• Less then 10 consecutive school days
• Series of short-term removals that are
not a pattern (even if greater than 10
days)
▫ Length of each removal;
▫ Total time removed;
▫ Proximity of removals;
▫ Behavior not substantially
similar; etc.
• Exceeds 10 consecutive school days
• Series of short-term removals that are a
pattern
• 45-day removal
▫ drugs, weapons, serious bodily
injury to another
• Request due process hearing for 45-day
removal ordered by hearing officer
▫ (very likely to injure self or others
in current placement)
Discipline (cont.)
2. Was the removal a Change of Placement? (cont.) (10+
days in a single school yr?)
 Based on “Unique Circumstances of Child”
 NO = Document Decision; Child remains where placed by the LEA;
Determine if Services are required (# 4)
 YES = Manifestation Determination; Functional Behavior
Assessment; and Behavior Intervention Plan (or review/amend
current plan)
 Stay Put Applies. Send Parent Notice of Decision and Procedural Safeguards Notice
28
Discipline (cont.)
3. Was the behavior a manifestation of the Child’s Disability?
(Decided by IEP team)
 NO = Stay Put does not apply (LEA may enact discipline)
 YES = Stay Put applies: Child Remains in School (exception 45-day
removal)
 Note: If the IEP Team cannot agree, the LEA makes the decision and
sends notice to the parent
29
Discipline (cont.)
4. Are services required?
 10 Day Rule – NO services required for first 10 school days of
disciplinary removal in school year unless services would be provided
to non-disabled students.
 LEA can always provide services even when not required.
 Starting 11th Day - Services may be required
 Not a Change of Placement – up to the LEA to decide the extent to
which services are required
 Change of Placement - services required, up to IEP Team
30
Discipline
 S.W. v. Holbrook Pub. Sch., 221 F. Supp. 2d (D. Mass. 2002)
Court ruled that child was entitled to “stay-put” in school after parent
filed for due process to challenge multidisciplinary team’s decision, in
wake of student’s expulsion for selling drugs, that student was not
eligible under IDEA.
 Coleman v. Newburgh Enlarged City Sch. Dist., 319 F. Supp. 2d 446
(S.D.N.Y 2004)
The court stopped the school district from implementing a 2 month
suspension of a student, finding that the team did not sufficiently
consider all relevant information at the manifestation determination and
no FBA had been conducted, despite the IEP team’s recommendation.
31
Discipline
 Shelton v. Maya Angelou Pub. Charter Sch., 587 F. Supp. 2d
(D.D.C. 2008)
Court upheld the hearing officer’s decision that failure to
provide a student with an FBA-BIP and failure to continue to
provide services in light of a determination that the conduct
at issue was not a manifestation of the child’s disability was a
denial of FAPE.
32
Section 504/ADA Issues
Section 504 covers all individuals who meet the definition of qualified
“handicapped” person
•Does not require that the child need special education services,
requires a 504 services plan (not an IEP) and is more lenient!
Section 504
Students with
Physical or Mental
Impairment
IDEA
Students
33
Students with
Records of Physical
or Mental
Impairment
Students Regarded
as Having Physical
or Mental
Impairment
Section 504/ADA Issues
 Americans with Disabilities Act (ADA)
 Prohibits discrimination on the basis of
disability by public entities, including public
schools.
 Covers access to all programs and services
offered by the entity, including physical access.
34
 Borough of Palmyra Bd. of Educ. v. F.C., 2 F. Supp. 2d 637 (D.N.J.
1998)
Court granted tuition reimbursement for Section 504 student
where accommodation plan failed to address impact of ADHD on
his written and organizational skills.
 Alvarez v. Fountainhead, Inc., 55 F. Supp. 2d 1048 (N.D. Cal.
1999)
Court ordered school to enroll asthmatic child, allow the child to
have access to his Albuterol asthma inhaler and to arrange for
reasonable relevant training of staff.
35
 Celeste v. E. Meadow Union Free Sch. Dist., 373 F. App’x 85
(2d Cir. 2010)
The Court upheld a jury verdict under the ADA for district’s
denial of meaningful facilities access to student with cerebral
palsy.
36
Attorney’s Fees
 Attorneys’ fees and related costs may be awarded to
“prevailing party.”
 LEAs are not responsible for parents’ attorneys’ fees for:




Attending resolution meeting
Attending IEP meeting (unless ordered by Hearing Officer)
Educational advocates
Expert fees (Arlington Central School District v. Murphy)
 Attorneys’ fees can be awarded to LEAs/SEAs as prevailing party
 Complaint filed was frivolous, unreasonable, without foundation
 Improper purpose
37
 Daniel S. v. Scranton Sch. Dist., 230 F.3d 90 (3d Cir. 2000)
Court allowed attorneys’ fees for IEP meeting where the
scheduled due process hearing was the catalyst for the
meeting.
 Joshua H. v. Lansing Pub. Sch., 161 F. Supp. 2d 888 (N.D. Ill.
2001)
Parents were found not to be the prevailing party where they
obtained, via the hearing, no more than what the district had
timely offered before the hearing.
38
 John M. v. Bd. of Educ., 612 F. Supp. 2d 981 (N.D. Ill. 2009)
Parents prevailed resulting in $45,000 in attorneys’ fees for
obtaining qualitatively “significant” relief, although it only
amounted to $6,000 of the $33,000 market value of the
services sought.
39
Remedies
 Courts have broad discretion in fashioning relief for
violations of the IDEA. (Burlington Sch. Comm. v. Dep’t of
Educ., 471 U.S. 359 (1985))
 Hold meetings
 Evaluations
 Placement
 Private
 Residential
 Compensatory education
40
 P.K. v. New York City Dep’t of Educ., __ F. Supp. 2d __, 57
IDELR ¶ 139 (E.D. N.Y. 2011)
Court upheld direct retroactive payment of tuition after finding
that the proposed IEP for preschool child with autism lacked
sufficient specially designed instruction and related services and
that the parent’s unilateral placement was appropriate.
 Argueta v. Dist. of Columbia, 355 F. Supp. 2d 408 (D.D.C. 2005)
Court upheld three-year compensatory education for district’s
failure to provide the special education and related services in the
child’s IEP.
41
Questions??
42
This presentation is intended solely to provide
general information and does not constitute
legal advice. Attendance at the presentation or
later review of these printed materials does not
create an attorney-client relationship with
Brustein & Manasevit, PLLC. You should not
take any action based upon any information in
this presentation without first consulting legal
counsel familiar with your particular
circumstances.
43