This material was originally presented at the 4th Annual Best Practices in Special and Regular Education Conference held in Concord, New Hampshire, on September 27 & 28, 2001. The conference was sponsored by the New Hampshire School Administrators Association (NHSAA), the New Hampshire Association of Special Education Administrators (NHASEA) and the New Hampshire Department of Education.

A Word of Caution

No two cases are exactly alike. This material is designed to provide educators with a broad understanding of new case law pertaining to certain aspects of the I.D.E.A. This material does not include every aspect of the law, nor does it discuss every case involving the IDEA. You are strongly encouraged to seek a legal opinion from your school district's legal counsel regarding any specific

Overview

The purpose of this material is to review selected decisions which have been recently rendered in the field of special education law. This material covers the time period from April 2000 to September 2001. The goal of this material is to provide the special education administrator with the tools necessary to interpret the statutory and regulatory law pertaining to the IDEA.

I. Identifying Children with Disabilities

A. The State May Require That a Physician Verify a Child's ADD/ADHD Diagnosis.

34 IDELR ¶ 35 (OSEP Opinion, June 3, 2000). The State of New Hampshire requires a medical examination by a licensed physician to determine whether or not a child has ADD/ADHD. In this opinion letter, OSEP affirms a state's right to impose such a requirement but also includes in that opinion a requirement that school districts inform parents that medical evaluations for ADD/ADHD determinations are available at no cost to a parent.

Practice Pointer: Usually districts have avoided this cost, but when push comes to shove, a district will have to pay for the medical exam.

B. Parental Removal Prior to Evaluation May Be a Factor in Considering a Parent's Reimbursement Request.

Ozark City Bd. of Educ., (Alabama) 34 IDELR ¶ 55 (SEA Decision, January 26, 2001). Parents withdrew their son from the Ozark City schools and placed him in a private school on the strength of allegations that the district had failed to address parental complaints concerning the education and discipline of their child. The district asserted that it had intended to act on a referral, but that the parent removed the child from school before the evaluation could take place and failed or refused to sign a permission to evaluate form.

The hearing officer found that the district did not violate the right to a FAPE because it was not allowed an opportunity to continue to provide educational services to the student. Interestingly enough, the hearing officer found that the district was to be held accountable for its failure to provide an earlier referral for evaluation, but that the refusal on the part of the parent to permit evaluation once the issue arose was sufficient to excuse the district from a reimbursement obligation.

Practice Pointer: Let parents know of the possible consequences of private placement without first permitting an evaluation.

C. Failure to Include a Regular Education Teacher in Team Meeting to Remove Speech and Language Label Is a Procedural Error.

Board of Educ. of the City Sch. Dist. (Dist. of NY), 34 IDELR ¶ 48 (SEA Decision, May 17, 2000). In this case, the review officer concurred with the independent hearing officer's conclusion that the district committed procedural errors in removing the speech and language label from a student. The hearing officer found that the Committee on Special Education's recommendation to eliminate speech and language services was procedurally defective due to the lack of a regular education teacher and the failure on the part of the team to determine whether it needed to conduct additional evaluations prior to removing the child's identifying labels. Despite this procedural finding, the hearings officer went on to deny a request for private school reimbursement, on the basis that the parents did not meet their burden of proving the appropriateness of the program at the private school. The hearing officer zeroed in on the failure of the parents to submit objective evidence that the small class setting was the appropriate placement, as opposed to an optimal placement.

Practice Pointer: Just another illustration which demonstrates why you need the regular educator at your team meetings.

D. Discrepancy Between Achievement and Intellectual Ability Must Be "Severe," In Order to Be Eligible for Special Education Due to A Specific Learning Disability.

Welton v. Liberty 53 School District, 35 IDELR 63 (W.D. Mo. 2001). A high school student had a diagnosed learning disability in the area of written expression. The parents argued that the student had disabilities in reading and math that were not addressed in his IEP. The court indicated that educational weaknesses were not synonymous with a severe discrepancy and affirmed the decision of a hearings officer limiting the scope of eligibility and disability to the area of written expression.

Practice Pointer: The discrepancy between achievement and intellectual ability must be "severe."

II. Individualized Education Programs [IEPs]

Knable v. Bexley City School District, 34 IDELR ¶ 1 (6 Cir., 99-4326, January 24, 2001). From August 1993 to January 1995, the parents of a student with ADHD sought to hold an IEP meeting with School District officials. When the parents placed their son in a residential facility, the District finally responded by faxing the parents a draft IEP which called for placement in a behavioral program at a nearby school. Parents sought a due process hearing seeking reimbursement for their placement costs. At the administrative level, the hearing officer found that the Knables had prevailed in establishing that the District did not convene an IEP conference, but then ruled that the District had prevailed in establishing that it could provide a FAPE to meet the student's specific needs. On that basis, the hearing officer ruled that the District was not responsible to pay the costs of placing the student at the Grove School or any other residential facility.

The case proceeded through the appeal process to the 6^th Circuit Federal Court of Appeals. The Appeals Court found that the School District failed to convene a meeting to develop an IEP for the student within thirty (30) calendar days of the determination that he needed special education and related services. The Court found that this failure to convene a formal IEP team meeting was a substantive denial of a FAPE under the IDEA. The Court observed that the IEP conference is the primary opportunity for parental involvement in the process of developing an IEP. The Court was not impressed by the District's tender of a draft IEP. The Court went on to review the draft IEP and noted numerous procedural and substantive deficits to that draft document.

On the basis of this substantive procedural violation, the Court ordered parental reimbursement for the Grove School.

Practice Pointer: Beware of "informal proposals." Informal proposals are no substitute for IDEA compliance. All informal proposals should be reduced to a formal IEP and placement document.

B. School Counselors May Be Designated as LEA Representatives.

34 IDELR ¶ 9 (OSEP Opinion, March 11, 2000). This opinion letter responded to the inquiry as to whether or not a school district may use school counselors as the LEA representative on the IEP team. OSEP responded in the affirmative, indicating that there was nothing in Part B which restricted a district from appointing a school counselor as the LEA representative on the IEP team, provided the LEA representative meets the requirements of 34 CFR 300.344 (a) (4). This section requires that the LEA representative be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities, be knowledgable about the general curriculum, and be knowledgable about the availability of resources of the LEA.

Practice Pointer: If you, as the Special Education Director, are spread too thin, consider cloning more LEA representatives.

C. District Given Latitude on Assistive Technology.

Tuscaloosa City Bd. of Educ., (Alabama) 34 IDELR ¶ 83 (SEA Decision, August 2, 2000). In this case, the parent and district disagreed over the appropriate augmentative communication device to be used by a fifteen-year-old student with a severe expressive language impairment. The mother contended that her son would make better progress using a Dynavox as opposed to a Superhawk. In the subsequent hearing there was extensive testimony as to the superiority of the Dynavox over the Superhawk. The Superhawk was typified as the low end of technology whereas the Dynavox was a dedicated system with more flexibility for spontaneous communication and novel communication. Despite the technical superiority of the Dynavox, the hearing officer found that providing the child with a Superhawk augmentative communication device, along with specialized instructions relating to the use of the device in related services, provided the student with a FAPE. Once again, the hearing officer's decision appears to have turned on the fact that the Superhawk was sufficient to provide "a basic floor of opportunity and to permit the child to benefit educationally from instruction."

Practice Pointer: In purchasing assistive technology the test is one of "appropriateness," for the particular student, not whether it is the best technology on the market.

D. Inadequate Individualized Family Service Plan Can Create Exposure for Private Services.

De Mora v. Department of Public Welfare (PA), 34 IDELR ¶ 85 (SEA Decision, March 1, 2001). In this case, the county school district had the burden of demonstrating that an individualized family service plan produced meaningful progress toward the plan's goals. While making progress in some areas of the plan, the county was unable to demonstrate the student's meaningful progress in the areas of occupational therapy, speech therapy and special instruction provided to her under the IFSP. Based on such evidence, the hearing officer ruled that the parents were entitled to reimbursement for their private expenses in providing their daughter with Lovaas training.

Practice Pointer: Your IFSP requires the same level of detail as your IEP. An inappropriate IFSP is just as dangerous as an inappropriate IEP.

E. Oral Agreement to a Service Is Not Enough, the Proposed Service must Be Placed in the IEP.

Burilovich v. Bd. of Educ. of the Lincoln Consolidated Sch., 32 IDELR ¶ 85 (6^th Cir. 2000). The parents of a young student with autism sought out the advice of Dr. Patricia Minehold, an avid opponent of the Lovaas Program. At an IEP meeting, the LEA representative orally agreed to implement Dr. Minehold's recommendations, including a home-based Lovaas Program. However, this agreement was not written down nor reflected in the IEP. At a second IEP meeting, the school district proposed placement of the child in a regular education classroom with a one-on-one aide. The parents sought reimbursement for a home-based Lovaas Program which they had funded. Interestingly enough, the 6^th Circuit Court held that an offer must be written into the IEP in order to be valid and enforceable against either the district or the parents.

Practice Pointer: Side deals are extremely unwise. Any agreements outside of mediation should find their way into the IEP or the placement document.

F. The Danger of Voting.

Sackets Harbor Central Sch. Dist. v. Munoz, 33 IDELR ¶ 154 (NY Sup. Ct. 2000). This case illustrates why teams should make decisions by consensus rather than by vote. The LEA representative suggested resolving disagreement about an educational program for a child with autism by majority vote of the members of the IEP team. In doing such, the administrator overlooked the fact that the parents and the individuals present with them were members of the team. The school district maintained that the "voting membership" of the IEP team had selected a school-based program for the child. The parents capably demonstrated to the hearing officer, and subsequently the appeal court, that if the votes of all team members had been counted, the child's IEP would have recommended a home-based program. The moral of this story is that LEA representatives should not call for a vote unless they are sure who is entitled to vote and how they are going to vote.

Practice Pointer: Vote early, vote often. Better yet, don't vote!

G. Evening IEP Meetings Are Unreasonable.

West Orange Board of Education, 34 IDELR 247 (SEA NJ 2001). A parent insisted that all IEP meetings for his son occur at his residence during the evening. The hearing officer found this demand on the part of the parent to be unreasonable particularly since the parent's employer had indicated that it would permit and encourage the parent to attend daytime meetings.

Practice Pointer: Usually the district IEP team need not make house calls.

H. An IFSP May Not Be Subject to Stay Put.

Huntsville City Board of Education, 34 IDELR 278 (SEA AL 2001). The parents of a three-year-old argued that the district's obligations under an IFSP were the equivalent of the stay put obligations under an IEP. The hearing officer rejected this argument indicating that because an IFSP did not rise to the level of an IEP under state law there was no last agreed-upon placement to trigger stay put.

Practice Pointer: A dispute over an IFSP may not trigger stay put. Whether or not it does such depends on whether or not the State Regulations consider an IFSP to be the equivalent of an IEP for purposes of stay put.

III. Free Appropriate Education at Public Expense

A. Teacher's Absence from Class Can Constitute a Denial of FAPE.

In Montgomery County Bd. of Educ. (Alabama) 34 IDELR ¶ 27 (January 25, 2001), the hearing officer held that frequent absences by the students' mathematics teacher constituted a denial of a FAPE to the educationally disabled student. Ruling that, "[o]ne must conclude that as a consequence of the numerous absences of his math teacher the petitioner was deprived of a Free, Appropriate Education in his math course," the hearing officer awarded additional services in math.

Practice Pointer: Finally, a case you can use to explain to teachers how their absences can have unexpected consequences.

B. Methodologies Remain the Province of the School District.

In re: Student with A Disability (Michigan) 34 IDELR ¶ 22 (May 12, 2000). The parents in this case reiterate a frequently heard argument that they were entitled to reimbursement for a private Lindamood-Bell Reading Program. The hearing officer denied reimbursement for the program, observing that, "[c]hoices of educational methodology, such as instructional techniques and personnel, remain within the discretion of the school district provided that the methods chosen offer Free Appropriate Public Education. Parents cannot compel these choices, no matter how strong their preference."

Practice Pointer: Give yourself some flexibility. Do not write a methodology into an IEP unless absolutely necessary.

C. Just Because Your Methodology Is Better than Mine Does Not Mean That We Have to Use it.

Steinmetz v. Richmond Community Sch. Corp., 33 IDELR ¶ 155 (SD. IN 2000). Parents of a five year-old with autism refused the IEP proposed by the district and sought reimbursement and funding for a home-based Lovaas Program. The district prevailed at the administrative levels. On appeal to the Federal Court, the District Court affirmed the administrative decisions, indicating that the dispute was one over competing methodologies. The Court reasoned that the fact that the home-based program was superior did not yield the conclusion that the district's proposed program was inappropriate, and hence reimbursement was denied.

Practice Pointer: Focus on whether or not your proposed methodology is appropriate. Do not get caught up in the "my methodology is better than yours" debate.

D. The Orton-Gillingham Methodology Is Not the Only Methodology.

Moubry v. Independent Sch. Dist. #696, 33 IDELR ¶ 92 (D. Minn. 2000). In this case, the parents contended that their child's reading program was inappropriate because it did not include the Orton-Gillingham methodology. The case wound its way through the administrative appeals level with the parents suffering defeat at each level. Finally, the Federal Court rejected the parents' claims, indicating that the standard of review was not whether the student could have made better progress in reading if furnished with the Orton-Gillingham methodology, but rather whether the child was making progress in the district's reading program. On the basis that the child did indeed make such progress, the Court dismissed the parents' appeal.

Practice Pointer: This is just confirmation of what districts have always considered to be the case.

E. A District's Obligation to Purchase Home Computers and Other Technology Turns on Necessity.

East Whittier City Elementary School District, 34 IDELR 49 (SEA Ca. 2000); Jefferson County School District R1, 34 IDELR 212 (SEA Co. 2001). In these two cases the parents sought an order from the hearings officer requiring the district to purchase home computers. In the first case, the parents alleged that their nine-year-old child who suffered from asthma-like symptoms required a home lap top computer in order to meet her instructional needs. The hearings officer relied on expert testimony which indicated that direct instruction provided the student with the best opportunity to improve her language skills. The hearing officer found that while it was not disputed the student needed a computer or word processor to aid her in writing composition that the district's desk top computers were sufficient to properly implement the IEP.

In the second case, the hearing officer acknowledged that while a home computer would be helpful to a high school student, the student did not require the computer in order to make educational progress. In fact, evidence indicated that the student did not make full use of the computers available at school.

Practice Pointer: The district's obligation to purchase home-based computer equipment turns on whether or not the technology is required in order for the IEP to be implemented. Usually the school-based computers will be sufficient for IEP implementation.

IV. Related Services

A. Music Therapy Can Be a Related Service.

34 IDELR ¶ 7 (OSEP Opinion). In response to an inquiry by the American Music Therapy Association, OSEP indicated that music therapy could be considered a related service. The OSEP director stated that, "[i]t has been the department's long standing interpretation that '. . . [a]s under prior law, the list of related services is not exhaustive and may include other developmental, corrective, or supportive services (such as artistic and cultural programs, art, music, and dance therapy), if they are required to assist a child with a disability to benefit from special education in order for the child to receive FAPE."

OSEP went on to observe that, "[w]e recognize that music therapy may be appropriate and useful for some children with disabilities." OSEP concluded that, "If the IEP team determines that music therapy is an appropriate related service for a child, the team's determination must be reflected in the child's IEP, and the service must be provided at public expense and at no cost to the parents.

This ruling does not mean that all educationally handicapped students must receive music therapy. This opinion does affirm that related services can be considered more broadly than as are set forth in State or Federal regulations.

Practice Pointer: In theory, just about anything can be a related service. Just because it is not on your "list" of related services does not mean that it is not a related service.

V. Placement

A. The "Natural Environments" Provision of Part C of the IDEA Does Not Require That Early Intervention Service Placement Occur Only in Those Settings Where Children Without Disabilities Are Present and Participate.

34 IDELR ¶ 36 (OSEP Opinion, August 6, 1999). OSEP has indicated that, while in general providing services in a setting limited exclusively to infants and toddlers with disabilities would not constitute a natural environment, the IFSP team may, in certain circumstances, make a determination that based on the unique needs of the child, the child cannot satisfactorily achieve the identified early intervention outcomes in natural environments and thus services may need to be provided in another environment. However, in such cases a justification must be included on the IFSP.

Practice Pointer: Early intervention programs will require both mainstream and non-mainstream opportunities to satisfy Part C.

B. Parental Preference for a Private Placement and Lack of Trust Are Insufficient to Warrant Out-of-District Placement.

Chicago Sch. Dist. 299, (Illinois) 34 IDELR ¶ 47 (SEA Opinion, September 16, 2000). In this interesting case the parent claimed that their multiply disabled son who had ADD and SLD was also emotionally disturbed. The parents requested placement of their son in a private day school setting for students with LD and emotional disturbance. In this fairly remarkable decision, the hearing officer concluded that, "[i]t appears from the testimony in this case that parents and their counsel wish to have labels placed on the student in an effort to make him appear more severely disabled than he is in the hope that such labels would drive a placement in the private day school they prefer, rather than the public school system." The hearing officer concluded that, "[i]t is not sufficient that a parent prefers a private placement and lacks trust in the District."

Practice Pointer: This is just confirmation that you need not be swayed solely by parental preferences or dislikes.

C. District Retains Discretion to Select Education Personnel.

Shreveport Sch. Dist. 145, 34 IDELR ¶ 104 (SEA Opinion IL 2000). The parents sought to have their disabled daughter assigned a new aide. They had written a letter to the school district indicating their objections to the aide assigned to their daughter. The parents took the position that the performance of the student's individual aide had been inadequate, that there was not sufficient rapport between the student and the aide, and thus the district should provide the student with a different individual aide. The school district argued that the student's aide was an exemplary employee and the personnel issues should be left to the district's discretion.

The hearing officer observed that, "normally the selection or retention of an aide to assist a student with disabilities is an administrative function and not subject to review under IDEA. An exception exists when the selection and retention of an aide deprives a student of a Free Appropriate Education. In this particular case, parents have the burden of proving that the retention of a student's aide interferes with the implementation of a student's IEP or poses a danger to student's health, safety or welfare, and that such a danger deprives the student of a Free Appropriate Education." The hearing officer found that the parent had not met this burden of proof and concluded that "the district has the discretion to choose whatever personnel is used to provide required services to a disabled student as long as the personnel is qualified and adequate. In this case, there is no reason to interfere with the district's discretionary authority."

For additional support to this premise see School Board of Lee County v. S.W., 35 IDELR 2 (Fla. 2^nd Dist.Ct. App. 2001).

Practice Pointer: Phew! You can still choose the service providers and not necessarily violate the IDEA.

D. If the Placement Decision Is Appropriate, a Failure to Include Parents in the Placement Decision May Not Be a Fatal Substantive Violation.

Soraruf v. Pickney Community Sch., 32 IDELR ¶ 4 (6^th Cir. 2000). The school district failed to include parents in the placement decision of their fourteen year-old son with autism. At the Federal District Court level, the Court held that the school had indeed committed a clear procedural violation by allowing the special education director to decide the student's placement. The court ordered an IEP team to be reconvened within thirty (30) days and for that team to propose a placement. Interestingly enough, the Court found that this procedural violation did not equate itself to a substantive violation of the IDEA, and dismissed the parents' case.

Practice Pointer: While not including a parent in a placement is a fairly significant procedural faux pas, the court will still consider the appropriateness of the resulting placement.

E. Not All Procedural Violations in IEP Development Will Deprive a Student of FAPE.

White v. School Board of Henrico County, 35 IDELR 7 (Va. Ct.App. 2001). In this case, the parents sought tuition reimbursement for a unilateral placement of their son in a private school. They argued that the district's procedural violations warranted tuition reimbursement. The court concluded that any procedural violations committed by the district did deprive the student of a FAPE. This case reaffirms the premise that an IEP will not be set aside absent "some rational basis to believe the procedural inadequacies compromised the pupil's right to an appropriate education, seriously hampered the parents' opportunity to participate in the formulation process, or caused a deprivation of educational benefits." See Roland M. v. Concord School Committee, 16 EHLR 1129 (1^st Cir. 1990).

F. Behavioral Problems at Home Will Not Always Justify a Residential Placement.

Gonzalez v. Puerto Rico Department of Education, 34 IDELR 291 (1^st Cir. 2001). In this case the court upheld a proposed IEP that placed the student in public school special education classes. The court specifically found that a student with autism did not require residential placement in order to make educational progress. While the court noted the significance of the student's problems at home it concluded that these problems did not affect the student's ability to learn to such an extent as to require a residential placement. The court accepted evidence that the student's behavioral problems could be managed effectively through additional services and training.

VI. Independent Educational Evaluations

A. Parental Consent Required to Access Insurance for IEEs.

34 IDELR ¶ 8 (OSEP Opinion). A Michigan special education services director posed the question to OSEP as to the rights of school districts to access a parent's insurance proceeds to offset the cost of an Independent Education Evaluation. OSEP concluded that it was inconsistent with Federal law for local school districts to adopt policies or procedures that require parents to submit invoices incurred for IEEs to their private insurance company. Instead, an IEE must be provided at public expense and "parents must also be informed that they may refuse to use their private insurance and that their refusal will not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parent."

Practice Pointer: Be very careful suggesting insurance reimbursement. Ultimately, it is the district's financial responsibility.

B. Parents Are Entitled to IEEs When They Disagree with a Functional Behavioral Assessment.

34 IDELR ¶ 34 (OSEP Opinion, June 7, 2000). OSEP has taken the position that a functional behavioral assessment is "a re-evaluation under Part B." OSEP has reasoned that parents who disagree with a functional behavioral assessment are entitled to an IEE. If the IEE is requested, the LEA must without unnecessary delay either initiate due process to show that its evaluation (functional behavioral assessment) was appropriate, or ensure that the IEE is publicly funded unless the LEA demonstrates in a hearing that the evaluation sought by the parent does not meet agency criteria.

Practice Pointer: Treat the request for an IEE after an FBA just as you would treat any other request for an IEE.

C. District Entitled to Proceed with the Re-evaluations Despite Parent's Refusal of Consent.

Madison Metropolitan Sch. Dist., 34 IDELR ¶ 109 (SEA WI 2001). The parents initially signed consents to re-evaluation. However, subsequently the parents informed the district that they were rescinding their consent and did not want the re-evaluations. The hearing officer ruled that under Wisconsin law a parent's refusal was overridden because of a lack of justifiable consent.

In New Hampshire, districts frequently go to due process over a parent's refusal for re-evaluation. This decision also appeared to turn on the provisions of the IDEA, and the hearing officer permitted the student's IDEA needs to trump the parent's right to refuse consent.

D. Merely Accepting an Outside Evaluator's Recommendations Does Not Obligate Reimbursement for That Evaluation.

Holmes v. Millcreek Township Sch. Dist., 32 IDELR ¶ 1 (3^rd Cir. 2000). The school district proposed to conduct a re-evaluation of a profoundly deaf fifth-grade student using a psychologist accompanied by a sign language interpreter. The parents insisted that the district evaluate their daughter by a psychologist who was proficient in sign language. When the district refused, the parents privately obtained an evaluation and requested reimbursement in the amount of $400.00.

At the administrative level the hearing officer concurred with the parents and awarded reimbursement. The review officer reversed the award. On appeal the federal Court ruled that the school district was required to pay for the private evaluation due to the district's reliance on parts of the evaluation in drafting the IEP. The district brought an appeal to the 3^rd Circuit Federal Court of Appeals and the Circuit Court reversed the trial court's ruling. The Circuit Court reasoned that the school district's original evaluation with the sign language interpreter was appropriate and denied the request for reimbursement. The Court indicated that mere acceptance of some of the recommendations of the private evaluation did not obligate the district to pay for the evaluation.

Practice Pointer: IEP teams should always take receipt of outside evaluations and should determine whether or not they offer valid insights/recommendations for the student. The LEA representative should avoid creating any ambiguity, however, as to whether or not the district intends to make reimbursement for the outside evaluation.

E. High IQ Students Can Be Identified as Learning Disabled.

Corchado v. Bd. of Educ. Rochester City Sch. Dist., 32 IDELR ¶ 116 (WDNY 2000). Sadrach, a ten year-old student with a full-scale IQ of 130, suffers from numerous medical difficulties. He has a seizure disorder, ADHD with aggressive tendencies, a psycho-motor delay, mild asthma and also learning disabilities. When the district refused to evaluate Sadrach, the parent obtained an independent medical evaluation which opined that Sadrach had significant learning disorders and neurological problems. The district then rejected the independent evaluator's findings, particularly since the independent evaluation was done in English even though Sadrach's primary language was Spanish. The district argued that these various conditions did not adversely affect Sadrach's academic performance in the classroom.

While the hearing officer agreed with the school district, the Federal Court found otherwise, holding that the evidence established that Sadrach was eligible for special education and related services by virtue of other health impairment, learning disability and speech impairment. The Court pointed to a remarkable discrepancy between ability and achievement, and on that basis opined that despite Sadrach's high IQ there was clear interference due to disability in Sadrach's achievement, which warranted an IEP.

Practice Pointer: Cases involving students with a high IQ frequently challenge our own stereotypes about what constitutes an educational disability.

VII. Discipline of Disabled Students

A. The Definition of "Knew or Should Have Known."

Board of Educ. of the Hartland Consolidated Schs., (Michigan) 34 IDELR ¶ 28 (SEA Opinion, March 17, 2000). An eleven-year-old student brandished a knife in his class at two students who were teasing him. The district expelled the student. There was no manifestation determination by the district, since the student had not been identified as disabled. The parents argued to the hearing officer that the district knew or should have known that their son was a student in need of special education and eligible for special education services, and that on that basis his expulsion was unlawful. The hearing officer heard cumulative testimony which convinced him that a history of vast behavioral issues demonstrated the need for special education services and thus the district had the "knowledge" that the student was in need of special education services. On that basis, the hearing officer concluded that the District violated the IDEA when it expelled him without following the IDEA's disciplinary provisions.

Practice Pointer: A history of behavioral issues may be sufficient to place a district on constructive notice that the student is entitled to IDEA disciplinary protections.

B. Prior School District Evaluation Finding That Student Does Not Meet IDEA Relieves District of IDEA Compliance.

Cabot Sch. Dist. (AK), 34 IDELR ¶ 78 (SEA Opinion, November 5, 2000). A student was expelled from the school district for violating its drug policy by carrying ADHD medication in her school backpack. She had previously been expelled and then allowed to return to school for providing students with an over-the-counter laxative medication as a joke. The parents argued that the district knew or should have known that their daughter was a student with a disability. However, the district argued that a previous evaluation determining that the student did not qualify as educationally handicapped under the IDEA was presumptive evidence that the district could not have been vested with knowledge that this student was a student with a disability.

The hearing officer found particularly persuasive the fact that a pre-expulsion evaluation had been conducted which did not appear to establish any disability or need for special education and related services. The hearing officer specifically noted that the mother did not challenge that examination or that decision by a subsequent request for due process prior to the expellable offense.

Practice Pointer: One reason not to decline a referral of a student with borderline behavioral problems is that the evaluation may protect the district in the future.

C. District's Awareness of Student's Disruptive and Inattentive Behaviors and Poor Academic Performance Are Sufficient to Place District on Notice of Suspected Disability and Warrants Setting Aside Expulsion Due to the District's Failure to Make a Timely Assessment.

Jurupa Unified School District, 34 IDELR ¶ 53. This thirteen-year-old ADHD student had been enrolled in the district since kindergarten. He was expelled near the end of the seventh grade for making remarks threatening to cause physical harm to a teacher. The father testified that his son had been "very hyper," a constant talker, and always "on the move" since the age of four or five. There was frequent contact between the teachers, principals and parents with regard to the behavioral problems that this student presented. In addition to the disruptive behaviors, the student began to experience academic difficulties in the third grade.

The father testified that he always thought that something was wrong with his son, but that no one at the school ever advised him to have his son assessed or taken to a doctor for diagnosis or treatment. On that basis the father contended that the district should have known several years prior to the student's expulsion, in July 2000, that he had a disability based upon both his behavior and failing grades. The hearing officer was persuaded by the evidence and concluded that the district knew of the student's disruptive and inattentive behavior and poor academic performance prior to the time of his expulsion, and thus the student was entitled to the protection of the IDEA. On that basis, the hearing officer ruled that the expulsion was in error and reversed it.

Practice Pointer: Just another case illustrating why you need to review every disciplinary file prior to expulsion to determine if the district has IDEA exposure.

D. The Court Does Not Tolerate Zero Tolerance Policies.

Seal v. Morgan, F.3d (6^th Cir.). In this case a student was suspended and then expelled when the Assistant Principal found a hunting knife in the glove compartment of his car. The student indicated that he was unaware that the knife was in his glove compartment. The school board found that the student had violated the State's Zero Tolerance Policy based on the fact of possession. In the subsequent federal appeal, the Sixth Circuit ruled that the concept of possession implies knowing or conscious possession, and that the school board violated the student's due process rights when it expelled the student without a finding of conscious possession.

Practice Pointer: Do not let school boards cavalierly hold to "zero-tolerance." A federal court will probably require a "knowing" offense by the student.

E. ADD and Risk-Taking/Thrill-Seeking Behavior Add up to a Manifestation.

Richland Sch. Dist. v. Thomas P., 32 IDELR ¶ 233 (W.D. WIS 2000). In this unusual case, a student committed forty-thousand dollars worth of vandalism at two elementary schools. The school conducted a manifestation determination prior to the recommended expulsion. Because the student was diagnosed as learning disabled, the school determined that the student's behavior had nothing to do with his disability. Subsequently, the boy was evaluated and diagnosed by a clinical psychologist with ADD and dysthymia. The clinical psychologist concluded that these disabilities led to his involvement in the criminal incident. At the hearing officer level, the officer set aside the expulsion. A Federal Court affirmed the officer's decision based on testimony by the clinical psychologist that young men with ADD are chemically attracted to risk-taking and thrill-seeking behavior and do not think about the consequences.

Practice Pointer: Who would have "thunk" it? Let's hope this case law stays in Wisconsin.

F. Not All Juvenile Behavior Is a Manifestation.

Randy M. v. Texas City Ind. Sch. Dist., 32 IDELR ¶ 168 (S.D. TX 2000). A young man with a learning disability and his friend allegedly ripped off the break away pants of a female student. The district's IEP team concluded that the action was not a manifestation of the boy's learning disability. The team recommended suspension and placement in an alternative school. The parents sought due process and injunctive relief to terminate the suspension. The school district prevailed at the hearing level and the parents appealed that decision to Federal Court. The Federal Court affirmed the hearing officer's decision, and ruled that the district was "justified in taking stern and aggressive remedial action."

Practice Pointer: At least some behavior is still not a manifestation of anything other than juvenile behavior.

G. Alternative School Placements Do Not Have to Be Carbon Copies of the Student's Regular Placement.

Parent v. Osceola County Sch. Bd., 32 IDELR ¶ 144 (M.D. FL 1999). A student identified as emotionally disturbed and learning disabled slashed another student's face with a box cutter while riding the school bus. He was placed in a juvenile detention center and suspended from school. A manifestation determination meeting was held and there was a "no manifestation" finding because of intent on the part of the student to bring the weapon to the school. The student was placed in an alternative school for the balance of the school year and performed well in that setting. When discussion arose as to the subsequent school year placement, the district recommended continuing the alternative school placement.

The administrative hearing officer found for the district, particularly on the basis that the student received FAPE at the alternative school. On appeal by the parents, the Court also found that the alternative school was reasonably calculated to provide the student with appropriate educational benefit and noted that the alternative school did not have to be a carbon copy of the regular education placement.

Practice Pointer: The latitude granted by the court to allow differences in the placement strengthens the case for alternative schools.

H. A Manifestation Review Team Must Consider the Parents' Input.

Amphitheater Unified School District (Arizona), 35 IDELR 42 (OCR 2001). The parent alleged that the manifestation review team did not consider her comments at their meeting. The Office for Civil Rights found that the Record of Meeting documented the parents' concerns. While finding such, the Office for Civil Rights also reaffirmed the fact that a manifestation team meeting should include a parent and the parent's input.

VIII. Liability Issues

A. Criminal Liability for "Mental Injury."

In the State of Florida v. Dufresne, 34 IDELR ¶ 2 (Dist. Ct. App. FL, January 24, 2001), the court upheld a State statute that made it a felony to intentionally act in a manner that would result in "mental injury" to a child. A public school teacher who worked with autistic children was charged with five counts of child abuse involving different children on the basis that he screamed at, force fed and slapped children under his instructional care. The court denied a constitutional challenge on the basis of vagueness, stating that it was bound by a prior Florida Supreme Court decision which held that a statute was not unconstitutionally vague if meanings for undefined terms could be identified from other statutes.

Practice Pointer: Never tolerate a verbally abusive instructor. This instructor's liability could become your liability.

B. Informing Parents of IDEA Rights Is Not a Threat to Terminate Services.

San Francisco Unified Sch. Dist., 34 IDELR ¶ 11 (OCR Opinion, June 29, 2000). The parents complained that the district threatened to terminate their son's special education services if they did not place him in a public school. OCR investigated the matter and found that informing the parents of changes in his IDEA and the possible consequences of continuing to enroll the student in a private school did not constitute a threat to terminate special education services.

Practice Pointer: You can, and should inform parents of the consequences of their actions under the IDEA. Merely reciting the proper law to a parent is not retaliation.

C. Peer-on-Peer Harassment.

Georgetown (MA) Pub. Schs., 34 IDELR ¶ 65 (OCR Opinion, September 8, 2000). This case involved a student with Tourette's disorder who was being teased and harassed by students such that it affected the student's educational environment. On that basis, the parents alleged that their son was being denied a FAPE. The Office for Civil Rights took these complaints seriously, and found in part for the parents. The result of the complaint was a requirement on the part of the district to consider additional training of staff on disability harassment, to publish the functions of a high school diversity club, and to consider an outside speaker from an organization knowledgable about disabilities such as Tourette's Syndrome to address the high school community.

Practice Pointer: The anti-bullying policies adopted by districts under NH RSA 193-F:1 should be used as a tool to protect disabled students from peer harassment.

D. A Valid DCYF Complaint Is Not Necessarily Retaliation.

Gwinnett County (GA) Sch. Dist., 34 IDELR ¶ 66 (OCR Opinion, July 31, 2000). OCR applied the five-part-test for unlawful retaliation to determine whether or not a district retaliated against a parent because she engaged in advocacy for the rights of her disabled son, by reporting her to the Department of Children and Family Services for suspected child abuse or neglect. While OCR found that the complainant had engaged in a protected activity and that the complainant was subjected to adverse action, OCR found that while there was a closeness in time between the protected activity and the adverse action, that the complainant was not treated differently than similarly situated parents, and thus that there was insufficient evidence to find a violation of Section 504 or Title 2. The key dispositive evidence involved the physical condition of the child at the time the district made its complaint.

Practice Pointer: The fear of being accused of retaliation should not prevent a district from making a well-founded DCYF complaint. Arguably, the complainant is protected from a finding of retaliation by state law.

E. Elimination of an Extended School Year Program May Violate the Rights of Students with Disabilities.

Greenwich (CT) Pub. Schs., 34 IDELR ¶ 69 (OCR Opinion, September 8, 2000). A class action complaint was filed with OCR alleging that the school district's elimination of an extended school year program which stressed social and communication skills violated the rights of students with autism, mental retardation and other severe disabilities. The parents argued that eliminating an ESY program option which permitted placement in public and private camps, with the district providing special education instructors and related services, denied their children access to an inclusive setting in which the students were educated during the regular school year. The end result was that the district agreed to maintain the ESY program, and in fact offered compensatory services to students who missed OT/PT or other needed services due to staff shortages during the summer months.

Practice Pointer: The next time your school board tries to cut an ESY Program, consider whether it will create exposure to a class of disabled students.

F. Teacher Liability for Offensive Remarks.

Palm Beach County (FL) Sch. Dist., 34 IDELR ¶ 38 (OCR Opinion, May 24, 2000). In this complaint, the parents alleged that a teacher prohibited a student from participating in a planned trip to Spain during Spring break based on the fact that the student was taking medication. In addition, the parents alleged that the teacher made insensitive remarks such as "[y]our sister understands directions, why can't you?" The teacher conceded that she may have made some of the remarks, and based on that concession, the district entered into an agreement with OCR where the teacher was required to attend sensitivity training dealing with the area of discipline and the district would disseminate to all faculty and staff a district policy that students with disabilities cannot be denied the opportunity to participate in field trips based on their disability.

Practice Pointer: Some teachers still do not understand the consequences of their remarks. Regular education teachers should be reminded that their next off-hand comment could result in an OCR investigation and mandatory "sensitivity training."

G. District Required to Provide Training of Staff with Regard to Diabetes and Administration of Injections.

Henderson County (NC) Pub. Schs., 34 IDELR ¶ 43 (OCR Opinion, May 12, 2000). In this case the parents of a diabetic student complained that the district discriminated against their daughter by failing to create a health management plan to provide her with diabetes-related aides and services, including administration of insulin injection in the event of a diabetic reaction.

OCR found for the parents, and required that the district provide school-wide training to all staff, regarding the recognition of the signs and symptoms of diabetes and at all times to provide no less than three full-time staff of the school trained in the use of an insulin pump and the administration of insulin injections.

Practice Pointer: Teachers cannot entirely avoid training in the area of medical intervention. Districts must train teachers how to respond in student-specific medical emergencies. If districts think there is a liability for providing medical assistance, they should consider the liability for not providing assistance.

H. Verdict Returned for Disabled Child in Harassment Suit.

In Haugstad v. Stanwood-Camano Sch. Dist., (U.S. Dist. Ct. WN July 2000) a Seattle jury rendered a verdict in the amount of $300,000.00 to a student with cerebral palsy who was teased and bullied by her fellow students for years. The verdict was rendered against the Stanwood-Camano School District personnel who did not provide sufficient supervision, and in the opinion of the jury, caused Ms. Haugstad to suffer emotional distress by failing to do enough to protect her from the bullying and harassment.

Practice Pointer: This is another good reason to get tough on bullies and to promulgate an anti-harassment policy.

I. Not All Restraint Leads to Liability.

O.F. v. Chester Upland Sch. Dist., 32 IDELR ¶ 114 (E.D. PA 2000); 32 IDELR ¶ 167. A nine year-old student with an emotional disturbance was threatened by another student. She became greatly agitated, started screaming and ran into the principal's office where she was apprehended and restrained by three school district staff members. The police arrived, handcuffed the student and placed one of her legs in restraint. The student was transferred to a residential school for students with emotional disabilities.

The student's guardian filed a complaint in the Federal Court alleging violations of the IDEA, ADA, Section 504, the U.S. Constitution and Section 1983. The guardian also sought money damages and injunctive relief. The school district moved to dismiss for failure to exhaust administrative remedies. The court ruled that administrative exhaustion was not required on the IDEA claim, but did dismiss the Constitutional claim stating failure to state sufficient facts, the false imprisonment claims due to governmental immunity and the Section 1983 claims to the extent said claims were based on alleged violations of the IDEA or Section 504.

Practice Pointer: Districts still have authority to use reasonable restraint. This case illustrates why all schools should have staff members trained in passive restraint.

J. The Limited Availability of Section 1983 Claims.

Smith v. Maine School Administrative District, 34 IDELR ¶ 5 (USDC ME, January 29, 2001). This case involved claims under Section 504, the ADA, Section 1983 and State Human Rights statutes over allegation by the parents of a middle school student diagnosed with mental retardation, ADHD and Cohen Syndrome, that the student was wrongfully excluded by the district, its principal and assistant principal from attending a school dance by reason of her disability. The District Court dismissed the Section 504 and ADA claims on the basis that neither statute permits claims against persons in their individual capacity.

The Court ruled that the Section 1983 Civil Rights claim should be dismissed on the basis that both the ADA and Section 504 provide an independent and comprehensive remedial scheme, and thus it was evident that Congress intended to preclude an action under Section 1983. The court also dismissed a Section 1983 claim based on IDEA violations, reasoning that the "language of Section 1415 (I) [of the IDEA] refers to Federal statutes 'protecting the rights of children with disabilities,' which Section 1983 does not specifically do." On that basis, the Court dismissed the IDEA-based Civil Rights claim.

Practice Pointer: Let the student attend the dance. Even if you win, you have lost.

IX. Reimbursement for Private Placement