Due Process and State Complaints

1. Due Process and State Complaints Bonnie Little, Esq. blittle@bruman.com Erin Auerbach, Esq. eauerbach@bruman.com Brustein & Manasevit, PLLC Spring 2012 Forum

2. 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

3. 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.

4. Due Process Complaints

5. 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.

6. 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

7. 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.

8. 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

9. 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.

10. 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.

11. 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.

12. 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)

13. 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

14. Appropriate Education • Components of an IEP • IEP Team • Required members • Parent participation • Development/revisions of an IEP • Teacher qualifications • Placement • Implementation

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. Teacher qualifications • Wilson Cnty. Sch. Sys. v. Clifton, 41 S.W.3d 645 (Teen. Ct. App. 2000) Court rejected district’s proposed placement for hearing-impaired child based on a number of deficiencies including teacher’s experience/training.

21. 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).

22. 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.

23. 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.

24. 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

25. 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.

26. Discipline Under IDEAStep-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)

27. Discipline (cont.) 2. Was the Removal a Change of Placement?

28. 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

29. 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

30. 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

31. 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.

32. 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.

33. 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! IDEA Students

34. 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.

35. 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.

36. 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.

37. 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

38. 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.

39. 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.

40. 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

41. 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.

42. Questions??

43. 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.