Update From the Courts That Count Nona Matthews, Walsh Gallegos Treviño Russo & Kyle, P.C.

Transcription

1 Great Ideas Convention 2016 Learning Lab Update From the Courts That Count Nona Matthews, Walsh Gallegos Treviño Russo & Kyle, P.C.

2 UPDATE FROM THE COURTS THAT COUNT: A Review of Recent Circuit Court Decisions Presented By: NONA MATTHEWS The information in this handout was created by Walsh Gallegos Treviño Russo & Kyle P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney. 505 E. Huntland Dr. Suite 600 Austin, Texas (512) Richmond Avenue Suite 750 Houston, Texas (713) N.E. Loop 410 Suite 900 San Antonio, Texas (210) Marquette, N.W. Suite 1360 Albuquerque, NM (505) Decker Court Suite 600 Irving, Texas (214) East 3 rd Street Weslaco, Texas (956) Page 1

3 EVALUATION/ELIGIBILITY D.A. v. Meridian Joint Sch. Dist. No. 2, 65 IDELR 286 (9 th Cir., July 6, 2015) (Unpublished) Was the student with Asperger s Syndrome eligible for special education? Summary: The parents and the District agreed that the high school student was diagnosed with Asperger s Syndrome; however, the issue was whether he needed special education services. The student performed well academically and in classes that emphasized pre-vocational and life skills. Therefore, the District Court and the Hearing Officer considered both academic and non-academic factors in concluding that, despite his autism, the student did not need special education services. The Ninth Circuit affirmed. Dept. of Ed. State of Hawaii v. Patrick P., 65 IDELR 285 (9 th Cir., July 14, 2015) (Unpublished) Was a twelfth grade student with a history of a Learning Disability eligible for special education services? Summary: The District provided evidence that the student performed well in his classroom and was generally engaged with his classes, he received good grades at a private school, and he received only tier one accommodations that could be provided to all students. Therefore, he did not demonstrate inadequate achievement or a severe discrepancy between achievement and ability, which was the standard in the Ninth Circuit. Phyllene W. v. Huntsville City Bd. of Ed., 66 IDELR 179 (11 th Cir., October 30, 2015) (Unpublished) Did the District s knowledge that the student was being fitted for a hearing aid trigger the District s duty to evaluate? Yes. Held for the Parent. Summary: The student was evaluated and identified as a student with a Learning Disability in the second grade. At the end of the fifth grade, the Parent informed the IEP team that the student suffered from a hearing loss. Although the student s triennial reevaluation was due at that time, the IEP team recommended that the student not be reevaluated at that time because she might test out of special education services, and the Parent agreed with the recommendation. In April of the student s ninth grade year, the Parent told the IEP team that the student was being fitted for a hearing aid; however, no evaluation was requested by the IEP team. At the same meeting, the student s special education teacher proposed a goal regarding the student s communication skills. Subsequently, the student withdrew to a private school, and the Parent requested a due process hearing alleging a failure to evaluate and a resulting denial of free appropriate public education ( FAPE ). The court clarified that the Parent s acquiescence to forego reevaluation does not excuse the District from conducting an Page 2

4 evaluation. The Court held that the District violated the procedural requirements of the Individuals with Disabilities Education Act ( IDEA ) by failing to evaluate the student when faced with evidence that she suffered from a suspected hearing impairment. As a result, the District failed to provide a FAPE because the lack of medical information rendered the accomplishment of the IDEA s goals impossible because no meaningful Individual Education Program ( IEP ) was developed, and the IEPs put into place lacked necessary elements with respect to the services that the student should have been provided. Q.W. v. Bd. of Ed. of Fayette Co., 115 LRP (6 th Cir., November 17, 2015) (Unpublished) Does educational performance as it relates to eligibility include not only academics but also social and psychological performance across all settings? Summary: The student received special education services as a student with Autism. A reevaluation determined that the student s Autism did not adversely affect his educational performance such that he was no longer eligible for special education services. The Court acknowledged that educational performance may encompass more than academic achievement; however, the plain meaning of educational performance suggests school-based performance rather than social or behavioral deficits at home that did not interfere with school-based performance. INDEPENDENT EDUCATIONAL EVALUATION ( IEE ) T.P. v. Bryan Co. Sch. Dist., 65 IDELR 254 (11 th Cir., July 2, 2015) Were the parents entitled to an IEE more than two years after the District s evaluation? No. Held for the District because the parents IEE request was moot. Summary: The District conducted an initial evaluation in September The IEP team met in September 2010, determined eligibility, and developed an IEP. The parents did not indicate any disagreement with the evaluation, eligibility, or IEP. The parents continued to voice no disagreement at the subsequent annual IEP meetings in September 2011 and September In November 2012, the parents contended that the 2010 evaluation was improper and requested an IEE at District expense. The District denied the request as untimely under the statute of limitations. The District acknowledged the parents concerns and proposed to conduct a reevaluation. The District further informed the parents that if they were dissatisfied with the reevaluation, they could then request an IEE at public expense; however, the parents would not consent to a reevaluation. The District and the parents both requested due process hearings. The Administrative Law Judge ( ALJ ) found that the IEE request was barred by the statute of limitations, and the District Court affirmed. The Eleventh Circuit found that the IEE request was moot, stating The parental right to an IEE is not an end in itself; rather, it serves the purpose of furnishing parents with the independent expertise and information they need to confirm or disagree with an extant, school-district-conducted evaluation. Regardless of the merits of Parents case, ordering an IEE at public expense in these circumstances would be futile because the District cannot be forced to rely solely on an independent evaluation conducted at the parents behest. Page 3

5 Because a reevaluation of T.P. is due, the relief the Parents seek an order directing the District to pay for an IEE will no longer redress the procedural injury they allege. Were we now to direct the District Court to order the District to pay for an IEE, it would not empower the Parents to participate in the IEP process. Thus, the Parents lack a legally cognizable interest in the outcome of the appeal, and their appeal is moot. ADMISSION, REVIEW, AND DISMISSAL ( ARD ) COMMITTEE MEETING PROCEDURAL REQUIREMENTS Z.R. v. Oak Park Unified Sch. Dist., 115 LRP (9 th Cir., November 6, 2015) (Unpublished) Can an Assistant Principal who teaches a general education class serve as the general education teacher on an IEP team? Yes. Held for the Parent. Summary: The Court found that because the Assistant Principal, who taught one period of Spanish, was a regular education teacher who is, or may be, responsible for implementing a portion of the IEP, his presence satisfied the requirement that the IEP team must include not less than 1 regular education teacher of such child. The Court went on to say that even if the procedural requirement was not satisfied, any error was harmless because it did not deprive the student of an educational opportunity or infringe on the parents right to participate. Note: The Texas Commissioner s rules require that, if a student s ARD committee includes a regular education teacher, the teacher must, to the extent practicable, be a teacher who is responsible for implementing a portion of the student s IEP. BEHAVIOR/FBAs and BIPs Payne v. Peninsula Sch. Dist., 66 IDELR 3 (9 th Cir., August 3, 2015) (Unpublished) Was the teacher entitled to qualified immunity when she allegedly placed a seven-yearold student with autism in a 63-inch by 68-inch safe room to manage his disruptive behaviors, and purportedly required him to clean up his own feces after he defecated in the safe room? Yes. The teacher is entitled to qualified immunity. Summary: The District Court held that the teacher should have known that she was violating the child s constitutional rights; however, the Ninth Circuit found that the student s IEP authorized the teacher to place the student in the safe room as long as the placement was not punitive, the door remained open, and an adult supervised the child. Therefore, it would not have been clear to a reasonable official that placing the student in the safe room was an unconstitutional seizure. The teacher was entitled to qualified immunity. Page 4

6 FAPE/ SUFFICIENCY OF THE IEP Sneitzer v. Iowa Dept. of Ed., et. al, 66 IDELR 1 (8 th Cir., August 7, 2015) Did the District s refusal to override the show choir audition process and unilaterally require the show choir director to place the student in the show choir deny the student a FAPE? Summary: The 16-year-old student was diagnosed with Asperger s Syndrome, Obsessive Compulsive Disorder, mood disorder, adjustment disorder, and Tourette s Syndrome. She was twice exceptional with a full scale IQ of 123, and she excelled in math and science taking several advanced placement classes. She was involved in extracurricular activities including choir, the school musical, and volleyball. Her IEP contained goals for following directions, demonstrating appropriate and respectful behavioral responses to peers and adults, and understanding social rules and behavior expectations; a one-on-one paraprofessional support for the entire day; the ability to return to the Autism Spectrum Disorder ( ASD ) classroom any time during the day, and the use of the ASD classroom to take tests in a quiet environment. As a result, the student remained in the general education setting for the majority of her day, maintained a GPA above 4.0, and ranked near the top ten percent of her class. Several traumatic events occurred at the beginning of 2012, including being raped on a cruise ship, a number of unsettling social interactions with peers, and failure to make the show choir. During the summer, the student participated in the summer conditioning program for the school s volleyball team, and she got along well with coaches and other students on the team. At an IEP team meeting in August 2012, the student s parent asserted that participation in the show choir was a necessary prerequisite to the student returning to the District in the fall. The IEP team determined that her needs could be met in ways other than being in the show choir, which was not necessary for a FAPE. The parent withdrew the student to the Grove School, a private school in Connecticut for similar students, and requested reimbursement. The Court found that the student s IEP was providing some educational benefit. Endrew F. v. Douglas Co. Sch. Dist. RE-1, 66 IDELR 31 (10 th Cir., August 25, 2015) benefit? Did the District provide the student with a FAPE by providing some educational Yes. Held for the District. Summary: The student with autism attended the District from preschool through fourth grade, receiving special education services. At the end of an especially rocky fourth-grade year, his parents withdrew him, enrolled him at Firefly Autism House, and requested reimbursement. The parents alleged that the District denied a FAPE by 1) failing to provide adequate progress reporting, and 2) failing to appropriately assess and address the student s behavior. They further asserted that 3) the student made no measurable progress on his goals, and 4) there was no consideration of the student s escalating behavior. The District agreed that the progress reporting could have been more robust the progress reporting Page 5

7 was lacking in detail and limited to conclusory statements about whether the student was on track to meet the expectations. The ALJ found that there was substantial evidence of the parents awareness of the student s progress and of their active participation in his education. They were in constant communication with the special education teacher through meetings and a back-and-forth notebook. The teacher sent home quarterly progress reports concurrent with the timing of report cards, provided the parents with draft IEPs in advance of meetings, and the parents actively participated in the IEP meetings. During the fourth grade, the student s behaviors increased to such a degree that the District decided to go back to the drawing board and rework their approach. The teacher kept notes in an effort to pinpoint triggers. The District scheduled an autism specialist and a behavioral specialist to meet with the IEP team to put a new behavioral plan in place. However, the parents did not attend the meeting because they withdrew the student before the meeting. The student was never subject to a disciplinary change in placement, so no FBA or BIP was required. The District considered behavioral interventions as required. The Court found that the student demonstrated some educational benefit, which is the standard in the Tenth Circuit. (The Fifth Circuit applies an arguably higher meaningful educational benefit standard.) The Court relied on evidence of the student s progress on past IEPs as proof of the adequacy of the proposed fifth-grade IEP. The Court also found that the District worked to address the student s behaviors, worked collaboratively with the parents and other service providers to address the student s behaviors as they arose, and called in specialists to reassess and implement a new plan when the student s behavior escalated. O.S. v. Fairfax Co. Sch. Bd., 66 IDELR 151 (4 th Cir., October 19, 2015) Has the standard for a FAPE under the IDEA changed since Rowley? Summary: The District Court applied the some educational benefit standard set forth in Rowley in 1982 by the U.S. Supreme Court. The parents asserted that the amendments to the IDEA in 1990 and 2004 changed the standard to meaningful educational benefit. The Fourth Circuit clarified that the use of the word meaningful was simply another way to characterize the requirement that an IEP must provide a child with more than minimal, trivial progress. In this circuit, the standard remains the same as it has been for decades: a school provides a FAPE so long as a child receives some educational benefit, meaning a benefit that is more than minimal or trivial, from special instruction and services. D.A.B. v. New York City Dept. of Ed., 115 LRP (2 nd Cir., November 18, 2015) (Unpublished) Did the Student require 1:1 instruction in order to receive a FAPE? Page 6

8 Summary: The parents of the student, an eleven-year-old child with Autism, requested continuation of a 1:1 educational program in which the student had made progress. After considering and rejecting a 12:1:1 placement, the IEP team decided that a 6:1:1 placement, coupled with a fulltime, individual behavior management paraprofessional, would adequately address the Student s needs. Additionally, the IEP provided for 1) 1:1 speech therapy five times a week for 45 minutes and once a week for 30 minutes; 2) 2:1 speech therapy once a week for 30 minutes; 3) 1:1 counseling twice a week for 30 minutes; 4) 1:1 occupational therapy five times a week for 45 minutes; and 5) 1:1 physical therapy twice a week for 30 minutes. The IEP specified a twelve month program with no more than five others students in the classroom, a special education teacher, a classroom paraprofessional, and a behavior management paraprofessional dedicated solely to the Student. The Court found that the IEP was reasonably calculated to provide a FAPE. LEAST RESTRICTIVE ENVIRONMENT ( LRE )/PLACEMENT H.L. v. Downington Area Sch. Dist., 65 IDELR 223 (3 rd Cir., June 11, 2015) (Unpublished) Did the District s placement in a special education resource class for 90 minutes per day for reading and writing comply with the LRE requirements? No. Held for the parents; however, the parents private placement was not appropriate, so reimbursement was denied. Summary: The District identified a fourth grade student with a Learning Disability and recommended placement in a resource classroom 90 minutes per day for special education English Language Arts instruction. The parents placed the student in a private school general education class. The Court found that the student s IEP provided no insight into the options the District considered before it determined that H.L. needed pull-out language arts instruction for 90 minutes a day. The IEP did not address why inclusion was inadvisable or why the specially-designed instructions it proposed could not be fully implemented in the regular classroom. The IEP contained a single line rejecting full inclusion as not appropriate for the student s needs. The District failed to consider the whole range or continuum of possible placements as mandated by the IDEA. [I]f a school has given no serious consideration to including the child in a regular class with such supplementary aids and services and to modifying the regular curriculum to accommodate the child, then it has most likely violated the LRE requirement. Pointe Educational Services v. A.T., 66 IDELR 4 (9 th Cir., July 29, 2015) (Unpublished) Was the District s proposed placement appropriate? No. Held for the Parents. Summary: The ALJ found that the District s proposed placement was inappropriate due to excessive transitions and the student was likely to be grouped in academic classes with older students and immersed in a school population with students exhibiting severe behavioral problems, whereas A.T. engaged in only minor behavioral issues. The District Court disagreed and reversed the ALJ. Page 7

9 The Ninth Circuit held that the ALJ s though and careful findings were entitled to due weight, which was not given by the District Court. UNILATERAL PRIVATE PLACEMENT Leggett v. District of Columbia, 65 IDELR 251 (DCC, July 10, 2015) Does the District s failure to offer an IEP prior to the beginning of the school year result in a need for residential placement at a private boarding school? Yes. Held for the Parents. Summary: The parents requested an evaluation for a suspected Learning Disability when the student entered high school in Although the District agreed to conduct the evaluation, it had failed to do so by the beginning of the student s junior year in the fall of By October that year, the student was failing most of her classes due to inattention, disorganization, and anxiety. In February 2012, the parent again requested an evaluation, which the District refused instead recommending that the parent pay for a private evaluation. After a settlement agreement, the District conducted an evaluation, and the IEP team convened in the weeks following final exams to develop an IEP for the next school year. Following two meetings in June, the team agreed to meet again in late August to finalize the plan. The team also recommended that, in the meantime, the student receive counseling over the summer. Subsequently, the parent ed, phoned and left a message, and sent a letter the Special Education Coordinator to pin down the details of the August meeting and to ask for guidance on the summer counseling. The parent received no response to these efforts. Therefore, the parent began exploring alternative placements, and she found only one school a boarding school in Pennsylvania that would serve the student s needs. On August 6, three weeks before the beginning of the new school year, the parent sent the District notice that she would be withdrawing the student and seeking public funding for placement at the Grier School, but she remained open to the possibility that the student could return to the District if the school offered her a satisfactory IEP. Again, no response. Having heard nothing by August 17, ten days before the first day of school, the parent filed a Request for Due Process Hearing seeking an acceptable IEP or reimbursement for Grier. On September 4, with no IEP in place, the student enrolled in Grier. The student thrived at Grier and earned all As and Bs in her first semester. Meanwhile, on September 11, more than two weeks into the school year, the District s IEP team met to try to finalize the IEP. By September 24, the IEP was finalized, but the parent alleged that it was full of errors and not appropriate. The District responded that the IEP was substantively valid, if sloppily done. The Hearing Officer and the District Court found that the District denied the Student a FAPE because no IEP was in effect at the beginning of the year, but denied reimbursement because the student had no need for residential placement. The Circuit Court reversed and ordered reimbursement because the District failed to comply with its obligations under the IDEA. LEGAL PROCEDURE Fry v. Napoleon Community Schools, 65 IDELR 221 (6 th Cir., June 12, 2015) Were the parents required to request a special education due process hearing (i.e. exhaust Page 8

10 administrative remedies) to challenge the District s refusal to allow a student to be accompanied by a service animal prior to filing suit under Section 504 and the Americans with Disabilities Act ( ADA )? Yes. Held for the District. Case dismissed for failure to exhaust. Summary: An elementary student with spastic quadriplegic cerebral palsy wanted to bring her service dog, a hybrid goldendoodle named Wonder, to school. She could not handle Wonder on her own. Her IEP included a human aide. The IEP team determined that the student was being successful in the school environment without Wonder, and all of the student s needs were being met by the program and services in place such that adding Wonder would not be beneficial to the student. The District refused to allow Wonder to come to school because he would not be able to provide any support the human aide could not provide. The parents filed a complaint with OCR. Two years later, OCR found the District s refusal to be a violation of the ADA. The District then agreed to allow Wonder to attend school; however, the parents decided to enroll the student in another District. The parents filed suit seeking monetary damages. The District Court granted the District s motion to dismiss because the parents did not comply with the IDEA s exhaustion requirement. The Sixth Circuit affirmed finding that the parents claim was essentially that the District did not provide a sufficient accommodation because the aide did not help the student learn to function independently as effectively as Wonder would have and perhaps because the aide was not as conducive to the student s participating confidently in school activities as Wonder would have been. Arguably, developing a working relationship with a service dog should have been one of the educational needs that result from the child s disability to be addressed in the student s IEP. [T]he exhaustion requirement must apply when the cause of action arise[s] as a result of a denial of a [FAPE] that is, when the legal injury alleged is in essence a violation of IDEA standards. B.S. v. Anoka Hennepin Public Schools, ISD No. 11, 66 IDELR 61 (8 th Cir., September 2, 2015) The Hearing Officer had the authority under state statues to maintain control and manage the hearing, which includes setting reasonable time limits for the presentations of the parties cases, in this case nine hours each. A.F. v. Espanola Pub. Sch., 66 IDELR 92 (10 th Cir., September 15, 2015) The successful mediation of an IDEA claim does not satisfy the statute s exhaustion requirement. A failure to exhaust under the IDEA justifies dismissal of Section 1983, Section 504, and Title II claims when alleging injuries that could be redressed to any degree by the IDEA s administrative procedures and remedies (i.e. seeking the same relief IDEA supplies). G.L. v. Ligonier Valley Sch. Dist. Authority, 66 IDELR 91 (3 rd Cir., September 22, 2015) Filing a timely complaint (i.e. within two years of when a parent knew or should have known of the violation one year in Texas) is a prerequisite to having an actionable claim. Once a violation is reasonably discovered by the parent, any claim for that violation, however far back it dates, must be filed within two years of the knew or should have known date. If it is not, all but the most recent two years before the filing of the complaint will be time-barred; but if it is timely filed, then, upon a finding of liability, the entire period of the violation should be remedied. Carroll v. Lawton Ind. Sch. Dist. No. 8, 115 LRP (10 th Cir., November 10, 2015) If the IDEA can provide relief for any of the student s claimed injuries, the parents must exhaust their Page 9

11 administrative remedies before filing suit. Allegations of educational harm, coupled with a claim that the student needed tutoring, required the parents to first seek relief through a special education due process hearing. ATTORNEYS FEES Meridian Joint Sch. Dist. No. 2 v. M.A., 65 IDELR 253 (9 th Cir., July 6, 2015) (Same parties as case under EVALUATION above) Were the parents entitled to attorneys fees when they obtained an IEE at District expense, but the student ultimately was not eligible for special education services? Summary: The parents were the prevailing party in obtaining an IEE from the Hearing Officer. Subsequently, the District determined that the student did not need special education services. Therefore, he was not a child with a disability under the IDEA. The IDEA provides that attorneys fees may be awarded to a prevailing party who is the parent of a child with a disability. Since the student was not identified as a child with a disability, the parents were not entitled to attorneys fees. Eley v. District of Columbia, 65 IDELR 252 (DDC, July 10, 2015) The Circuit Court declined to award the parents attorney $625 per hour. Case remanded. McAllister v. District of Columbia, 65 IDELR 284 (DDC, July 14, 2015) The Circuit Court denied the parent s claim for $23,757 in paralegal fees. Reimbursement of expert witness fees is not reimbursable under the IDEA. The consultant described herself as a special education advocate and expert in her resume, and she billed for reviewing evaluations and attending IEP meetings. Her resume did not indicate any legal training or paralegal experience. Therefore, the Court found that she was not acting in a paralegal capacity, and her fees were not reimbursable. D.G. v. New Caney Ind. Sch. Dist., 115 LRP (5 th Cir., November 10, 2015) The time limit for a party to seek attorney s fees is at least thirty days following the expiration of the period of time to appeal the decision of the Hearing Officer. It remains unsettled in the Fifth Circuit, however, how long after the appeal deadline expires a party has to file a claim for attorney s fees. Page 10